U 


OBSCENE'    LITERATURE 


AND 


CONSTITUTIONAL    LAW 


A    FORENSIC  DEFENSE   OF  FREEDOM  OF   THE  PRESS 


BY 


THEODORE     SCHROEDER 

P 

LEGAL   COUNSELLOR    TO   THE    MEDICO-LEGAL     SOCIETY     OF     NEW    YORK 
COMPILER    OF   FREE    PRESS   ANTHOLOGY 


"  Let  us  be  fret  from  all  fear  of  the  world  or  of  consequences,  in  a 
manly  purpose  to  find  and  follow  the  truth  as  we  see  it."— HUGH 
O.  PENTECOST. 


PRIVATELY    PRINTED 

FOR    FORENSIC     USES 

NEW  YORK 
1911 

Copyright  by  the  Author,  1911 


"  HE  that  would  make  his  own  liberty  secure,  must 
guard  even  his  enemy  from  oppression,  for  if  he  vio- 
lates this  duty  he  establishes  a  precedent  that  will 
reach  to  himself," 

—  Thomas  Paine, 

"  Those  powers  of  the  people  which  are  reserved 
as  a  check  upon  the  sovereign  can  be  effectual  only  so 
far  as  they  are  brought  into  action  by  privats  individ- 
uals, Sometimes  a  citizen  by  the  force  and  perseve- 
rance of  his  complaints,  opens  the  eyes  of  a  nation," 

— DE  Lolme, 

"  I  will  be  harsh  as  truth  and  as  uncompromising  as 
justice,  I  am  in  earnest ;  I  will  not  equivocate  ;  I  will 
not  excuse;  I  will  not  retreat  a  single  inch;  and  I 
will  be  heard," 

Garrison, 


Prolegomena 
Chapter         I. 
Chap.  II. 

Chap.          III. 

Chap.          IV. 
Chap.  V. 

Chap.          VI. 
Chap.        VII. 

Chap.       VIII. 


Chap. 

Chap. 

<     Chap. 

Chap. 


IX. 

X. 

XI. 

XII. 


Chap.  XIII. 

Chap.  XIV. 

Chap.  XV. 

Chap.  XVI. 

Chap.  XVII. 


CONTENTS 

PAGE 

.  7 

A  Statement  of  the  Contentions           .  1 1 

OntheAdver.se  Emotional  Predisposition  24 
No  "  Obscene "   Literature   at   Common 

Law    .                                                      .  33 

The  Etiology  and  Development  of  Our 
Censorship  of  Sex-Literature  .  42 

The  Reasons  Underlying  Our  Consti- 
tutional Guarantee  of  a  Free  Press, 
Applied  to  Sex-Discussion  .  .  74 

Obscenity,  Prudery,  and  Morals  .       101 

On  the  Implied  Power  to  Exclude  "  Ob- 
scene "  Ideasjfrom  the  Mails  .  .129 

Concerning  the  Meaning  of  "Freedom  of 
the  Press"  .  .  .  .  142 

The  Judicial  Destruction  of  Freedom  of 
the  Press 154 

Judicial  Dogmatism  on  "  Freedom  of  the 
Press" 163 

The  Historical  Interpretation  of  "  Free- 
dom of  Speech  and  of  the  Press"  .  206 

Science  versus  Judicial  Dictum  :  A  State- 
ment of  Novel  Contentions  and  a 
Plea  for  Open-Mindedness  .  .  240 

Ethnographic  Study  of  Modesty  and 
Obscenity 258 

Psychologic  .  Study     of     Modesty     and 

Obscenity 271 

Uncertainty  of  the  "Moral  "Test  of 
Obscenity  .  .  .  .  .  .279 

Varieties  of  Official  Modesty        .         .       302 
Varieties  of  Criteria  of  Guilt  .         .  326 

328^51 


CONTENTS 

Chap.  XVIII.  "  Due  Process  of  Law "  in  Relation  to 
Statutory  Uncertainty  and  Construct- 
ive Offenses.  Part  I.  The  Scientific 
Aspect  of  Law  .... 

Chap.  XIX.  "Due  Process  of  Law"  in  Relation  to 
Statutory  Uncertainty  and  Construct- 
ive Offenses.  Part  II.  General  Con- 
siderations Concerning  Uncertainty  and 
Due  Process  of  Law  .... 

Chap.  XX.  "Due  Process  of  Law"  in  Relation  to 
Statutory  Uncertainty  and  Construct- 
ive Offenses.  Part  III.  Historical 
Interpretation  of  "Law"  in  Relation 
to  Statutory  Certainty 

Chap.  XXI.  "Due  Process  of  Law"  in  Relation  to 
Statutory  Uncertainty  and  Construct- 
ive Offenses.  Part  IV.  Certainty  Re- 
quired by  Modern  Authorities 

Chap.  XXII.  "Due  Process  of  Law"  in  Relation  to 
Statutory  Uncertainty  and  Construct- 
ive Offenses.  Part  V.  The  Synthesis 
and  the  Application 

Chap.  XXIII.  Ex  Post  Facto  Criteria  of  Guilt  are 
Unconstitutional 


PAGE 


343 


355 


365 


384 


402 


416 


ERRATA. 


Page  31  :    Westermarck,  Finnish  scholar,  not  Swedish. 

P.  71 :  Foot-note  20  probably  refers  to  whole  article,  as  no  refer- 
ence figure  appears  in  the  text. 

P.  308 :  Foot-note  corresponding  to  Reference  91  (Ohio  Decameron 
case,  U.  S.  Court)  is  missing. 

P.  318  :     Foot-note,  Walls  tone  craft,  not  "Woolstonecraft." 

P.  320:  Foot-note  113  should  refer  to  Prof.  W.  I.  Thomas,  not  to 
"Fables  for  the  Female  Sex." 

P.  392  :     Foot-note  corresponding  to  Reference  63  is  missing. 

P.  401:  Foot-note  86,  quoted  from  memory,  is  State  vs.  Holland, 
37  Mont.,  393."  Also,  a  decision  from  Oregon  or  Washington  holding 
invalid  an  anti-cigarette  ordinance  for  want  of  a  definition  of  what  con- 
stitutes a  cigarette. 

P.  401  :  The  foot-note  here,  Mcjunkins  vs.  State,  10  Ind.,  145 
(A.  D.  1858,)  should  go  to  page  406  as  foot-note  87. 

P.  406  :  Foot-note  now  numbered  87  should  be  numbered  88,  Cook 
vs.  State,  59  N.  E.  Ind.  489-90  (1901). 

P.  407  :  Foot-note  89  should  be,  "  Requoted  from  Hey  wood's 
Defense,  p.  29." 

P.  407  :  Foot-note  90  should  be,  Ex  parte  Andrew  Jackson,  45  Ark. 
164  (1885). 

P.  407  :  Foot-note  91  should  be,  U.  S,  vs.  Commerford,  25  Fed. 
Rep.  904,  West.  Dist.  of  Texas. 

P.  407  :  Foot-note  now  numbered  91  is  astray,  there  being  no 
corresponding  reference  in  text. 

There  are  quite  a  number  of  breaks  in  the  continuity  of  several 
series  of  the  foot-notes  and  the  corresponding  reference  figures  in  the 
text,  due  to  the  transference  of  parts  of  the  text  to  other  places  in  the 
book  after  the  citations  and  the  foot-notes  were  linotyped. 


PROLEGOMENA 

I  understand  a  preface  to  be  the  place  used  by  authors  for 
explaining  the  reason  of  the  existence  and  the  character  of 
their  performance,  and  sometimes  to  aid  the  reader  to  some 
advance  appreciation  of  the  author's  purpose  and  viewpoint. 
To  these  ends  I  will  devote  this  introduction. 

My  numerous  smug  friends,  who  pride  themselves  on  their 
"eminent  respectability,"  often  reproach  me  gently  for  my  ex- 
tensive advocacy  of  freedom  of  speech  and  press,  and  of 
uncensored  mails  and  express.  To  defend  the  right  of  all 
humans  to  an  opportunity  to  know  all  there  is  to  know,  even 
about  the  subject  of  sex,  to  the  polluted  minds  of  my  "pure" 
friends,  is  to  defend  an  "uncleanness  " — not  at  all  unclean  so 
far  as  it  relates  to  their  own  bodies,  but  "unclean"  to  talk  and 
read  about  — not  "unclean"  as  to  any  acts  or  facts  in  their  own 
lives,  but  ''unclean"  only  to  admit  a  consciousness  of  those 
facts.  I  reluctantly  confess  that  all  such  hypocritical  moral 
cant,  or  diseased  sex-sensitiveness,  arouses  in  me  the  most 
profound  contempt  of  which  my  phlegmatic  nature  is  capable. 
Perhaps  that  is  ONE  reason  why  I  was  impelled  to  do  this  un- 
compensated  and  unpopular  work  and  sometimes  to  do  it  in  a 
manner  that  is  devoid  of  tact,  according  to  the  judgment  of 
those  who  dare  not  countenance  robust  frankness. 

They  say  to  me,  "What  do  you  care?  You  know  all  you 
wish  to  upon  the  tabooed  subject;  what  do  you  care,  even 
though  the  general  public  is  kept  in  ignorance,  and  a  few 
[thousand]  go  insane  as  the  result?  That  doesn't  harm  you 
any,  and  may  be  the  public  is  benefited,  in  that,  together  with 
serious  and  searching  sex-discussion,  much  real  smut  is  also 
suppressed."  Such  has  always  been  the  specious  plea  of  the 
shortsighted  and  the  cowardly,  during  the  whole  period  of  the 
agitation  for  a  secular  state  and  freedom  of  speech. 

The  answers  to  such  specious  "arguments"  have  been  often 
made  in  the  contests  of  past  centuries,  and  I  can  do  no  better 
than  to  quote  the  answer  of  Dr.  Priestly :  "A  tax  of  a  penny  is 
a  trifle,  but  a  power  imposing  that  tax  is  never  considered  as  a 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

trifle,  because  it  may  imply  absolute  servitude  in  all  who  sub- 
mit to  it.  In  like  manner  the  enjoining  of  the  posture  of  kneel- 
ing at  the  Lord's  supper  is  not  a  thing  worth  disputing  about 
in  itself,  but  the  authority  of  enjoining  it  is;  because  it  is  in 
fact  a  power  of  making  the  Christian  religion  as  burdensome 
as  the  Jewish,  and  a  power  that  hath  actually  been  carried  to 
that  length  in  the  church  of  Rome.  *  *  *  Our  ancestors, 
the  old  Puritans,  had  the  same  merit  in  opposing  the  imposition 
of  the  surplice  that  Hampden  had  in  opposing  the  levying  of 
ship  money.  In  neither  case  was  it  the  thing  itself  they  ob- 
jected to,  so  much  as  the  authority  that  enjoined  it  and  the 
danger  of  the  precedent.  And  it  appears  to  us  that  the  man 
who  is  as  tenacious  of  his  religious  as  he  is  of  his  civil  liberty 
will  oppose  them  both  with  equal  firmness.  *  *  *  The 
man  of  a  strong  and  enlarged  mind  will  always  oppose  these 
things  when  only  in  the  beginning,  when  only  the  resistance 
can  have  any  effect;  but  the  weak  and  the  timid,  and  short- 
sighted, will  attempt  nothing  till  the  chains  are  riveted  and  re- 
sistance is  too  late.  In  civil  matters  the  former  will  take  his 
stand  at  the  levying  of  the  first  penny  by  improper  authority, 
and  in  matters  of  religion,  at  the  first,  though  the  most  trifling, 
ceremony  that  is  without  reason  made  necessary,  whereas 
the  latter  will  wait  till  the  load,  in  both  cases,  is  become  too 
heavy  to  be  either  supported  or  thrown  off." 

In  itself  it  may  not  be  of  great  importance  that  by  uncon- 
stitutional statutes,  much  disagreeable  literary  and  inartistic 
matter  about  sex  is  suppressed,  nor  even  that  the  best  scien- 
tific literature  about  sex  is  withheld  from  the  laity,  and  to  some 
extent  even  from  physicians ;  it  may  not  even  be  of  importance 
that,  as  a  result  of  this  general  compulsory  ignorance  about 
sex,  thousands  of  people  are  in  asylums  who  would  not  be 
there  but  for  our  legalized  prudery,  and  compulsory  ignorance, 
but  it  is  of  infinite  importance  to  destroy  a  precedent  which  im- 
plies the  admission  of  a  power  to  wipe  out  any  literature  upon 
any  subject,  which,  through  popular  hysteria  or  party  passion, 
may  be  declared  "against  the  public  welfare." 

So  long  as  the  present  laws  against  "obscene"  literature 
stand  unchallenged  as  to  their  constitutionality,  we  admit  that 
here,  as  in  Russia,  liberty  of  the  press  is  liberty  only  by  per- 
mission, not  liberty  as  a  matter  of  right.  With  the  "obscenity" 
laws  as  a  precedent,  our  censorship  has  grown  until  now  (and 
I  say  this  deliberately  and  later  may  furnish  the  proof  of  it), 

8 


PROLEGOMENA. 

liberty  of  the  press  in  the  United  States  is  more  perniciously 
and  more  extensively  curtailed  than  it  was  in  England  at  the 
time  of  our  revolution.  That  sounds  strange  to  the  American 
dullards  who  on  the  Fourth  of  July  talk  about  liberty  without 
knowing  its  meaning,  but  a  comparison  of  the  laws  then  and 
now  will  justify  my  conclusion. 

Most  of  the  following  essays  have  already  appeared  in  va- 
rious popular,  radical,  medical  and  legal  journals.  My  in- 
tention was  primarily  to  address  an  argument  to  the  members 
of  the  bar  generally  and  to  others  interested.  I  have  not 
thought  it  best  to  change  any  of  the  substance  of  my  argu- 
ment or  the  manner  of  stating  it  on  account  of  the  fact  that  it 
may  be  presented  to  a  judicial  tribunal.  I  hope  I  do  not  over- 
estimate the  intellectual  hospitality  of  our  appellate  courts,  by 
not  having  taken  into  account  those  little  tricks  of  intellectual 
expediency  which  lawyers  often  feel  compelled  to  resort  to 
when  addressing  judges  of  smaller  mental  caliber.  I  have 
bluntly  stated  what  to  me  seemed  to  be  the  truth  and  I  wish 
to  remind  the  judges  who  may  do  me  the  honor  to  read  this, 
that  no  litigant  whose  interests  may  'be  involved  can  be  justly 
held  accountable  for  my  indiscretions  or  want  of  tact.  I  am 
almost  glad  that  I  did  not  have  time  thoroughly  to  revise 
these  essays  after  their  publication  in  the  magazines,  lest  I 
should  have  been  tempted  to  withdraw  the  compliment  to  our 
courts,  which  is  implied' in  my  robust  frankness. 

At  the  very  outset,  I  feel  an  urgent  necessity  for  express- 
ing some  misgivings  which  I  entertain,  as  to  the  arguments 
that  follow,  and  thus  incidentally  I  express  my  apologies  there- 
for if  such  are  deemed  to  be  due  from  me.  In  many  places, 
it  seems  to  me  that  I  have  unnecessarily  elaborated  what  per- 
haps is  so  elementary  that  I  should  have  assumed  every  lawyer's 
familiarity  with  it.  If  I  fail  to  make  this  assumption,  it  is 
because  I  remember  that  thousands  of  lawyers,  in  as  many 
cases,  have  had  opportunity,  and  courts  have  had  the  duty,  to 
make  a  practical  application  of  these  fundamental  principles, 
without  giving  a  hint  that  they  knew  of  their  existence.  Many 
of  these  cases  have  gone  to  appellate  courts,  including  the 
Supreme  Court  of  the  United  States. 

Am  I  in  error  in  thinking  these  principles  elementary  ?  Or 
is  it  error  to  assume  that  innumerable  distinguished  lawyers 
and  courts  are  familiar  with  elementary  principles  ?  These  are 
the  questions  which  perplex.  It  seems  to  me  that  others  have 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

unconsciously  taken  too  much  for  granted ;  shall  I  then  deliber- 
ately repeat  their  error?  In  this  perplexing  situation,  I  must 
resolve  all  doubts  against  myself.  In  view  of  all  the  facts  relat- 
ing to  innumerable  prosecutions  where  the  principles  herein- 
to-be  contended  for  should  have  been  applied,  I  feel  myself 
unqualified  to  determine  what  is  safe  to  take  for  granted.  If 
I  am  wrong  in  that  which  I  will  claim,  the  courts  will  correct 
me,  when  this  argument  reaches  them,  as  it  ultimately  will.  If 
I  am  right,  I  dare  not  take  for  granted  that  others  know  it  as 
axiomatic,  for  I  must  heed  the  warning  given  me  by  the  re- 
corded experience  of  others. 

In  closing,  I  must  again  ask  that  judges  to  whom  this  argu- 
ment may  be  presented  will  not  hold  either  the  lawyers  who 
may  refer  to  it  or  their  clients  responsible  for  my  indiscre- 
tions, if  I  am  deemed  guilty  of  such.  This  argument  has  been 
prepared,  as  also  all  possible  revised  editions  of  it  will  be,  with- 
out reference  to  any  particular  case,  or  any  particular  court. 
Had  a  thorough  revision  been  possible  before  book-pubJica- 
tion,  I  should  have  eliminated  many  repetitions  of  thought, 
which  seemed  necessary  in  preparing  the  separate  magazine 
articles. 

New  York  City.  THEODORE  SCHROEDER. 


CHAPTER  I. 
A    STATEMENT    OF    THE    CONTENTIONS 

Revised  from  The  Albany  Law  Journal,  Nov.,  1907. 

I  am  now  making  a  statement  of  the  questions  to  be  here- 
after discussed.  I  will  briefly  outline  them,  giving  refer- 
ences to  a  few  preliminary  discussions  in  professional  peri- 
odicals and  pamphlets.  These  contentions,  when  adequately 
presented,  I  believe  must  result  in  the  judicial  annulment  of  all 
present  State  and  Federal  laws  against  "obscene"  literature. 
That  such  laws  have  been  enforced  vigorously  for  nearly  half 
a  century  without  having  their  constitutionality  seriously  ques- 
tioned, is  as  unusual  as  are  the  factors  to  which  the  Constitu- 
tion must  be  applied  in  order  to  reach  the  result  herein  con- 
tended for.  Many  of  the  problems  here  involved  are  difficult 
of  solution  to  those  who  are  not  trained  specialists  in  psychol- 
ogy and  especially  in  sexual  psychology.  Later  on,  in  the  com- 
pleted argument,  when  we  come  to  study  the  nature  and  psy- 
chology of  modesty,  we  will  find  the  explanation  of  this  long 
acquiescence  to  be  of  the  very  essence  of  our  emotional  life, 
which,  coupled  with  the  general  absence  of  psycho-sexual  intelli- 
gence, have  so  befogged  the  critical  capacity  of  the  members  of 
the  profession  as  even  to  preclude  a  search  for  the  discovery  of 
such  questions  as  I  am  about  to  raise.  My  contention  is  that 
the  postal  and  other  laws  against  "obscene  and  indecent"  liter- 
ature are  unconstitutional  for  the  following  reasons : 

I.  Because  not  within  any  expressed  or  implied  power  of 
the  Congress  to  enact. 

Syllabus  of  the  Argument:  The  power  to  create  a  postal 
system  implies  the  power  to  pass  all  laws  "necessary  and 
proper"  to  the  end  of  executing  the  power  to  establish  post 
offices  and  post  roads,  but  it  does  not  authorize  Congress, 
under  the  pretext  of  creating  and  maintaining  post  offices,  to 
make  the  postal  system  a  means  to  the  accomplishment  of 
ends  not  entrusted  to  the  care  of  Congress.  The  very  creation 
of  a  postal  system  necessarily  involves  a  determination  of  the 

ii 


OBSCENE  LITERATURE  A  XL)  CONSTITUTIONAL  LAW. 

gross  physical  characteristics  of  that  which  is  to  be  carried  or 
excluded  and  therefore  implies  the  power  to  determine  such 
qualities.  A  like  implication  cannot  be  made  in  favor  of  a 
power  to  determine  what  are  mailable  ideas,  because  a  differ- 
ential test  of  mail  matter,  based  upon  the  opinions  transmitted 
through  the  mails,  or  the  psychological  tendencies  of  such 
opinions  upon  the  addressee  of  the  mails,  or  a  differential  test 
based  upon  an  idea  which  is  not  actually  transmitted,  but  is 
suggested  by  one  that  is  transmitted,  bears  no  conceivable 
relation  to  the  establishment  or  maintenance  of  post  offices  or 
post  roads  for  the  transmission  of  physical  matter  only. 

It  may  be  admitted  that  the  power  granted  implies  the  power 
to  preclude  the  use  of  the  mails  as  an  essential  element  in  the 
commission  of  a  crime  otherwise  committable,  and  over  which 
the  Congress  has  jurisdiction  (such  as  fraud  and  gambling), 
within  the  geographical  limits  of  its  power.  But  it  is  claimed 
that  the  power  of  Congress  is  limited  to  the  use  of  means  which 
are  a  direct  mode  of  executing  the  power  to  establish  post 
offices  and  post  roads,  or  some  other  power  expressly  granted, 
and  it  cannot,  under  the  pretense  of  regulating  the  mails,  ac- 
complish objects  which  the  Constitution  does  not  commit  to 
the  care  of  Congress.  Such  an  unconstitutional  object  is  the 
effort  of  Congress,  under  the  pretext  of  regulating  the  mails, 
to  try  to  use  the  mails  as  a  means  to  control  the  psycho-sexual 
condition  of  postal  patrons.1 

Neither  can  the  exercise  of  the  present  power  be  justified  as 
an  incident  to  the  power  to  regulate  interstate  commerce,  be- 
cause the  censorship  is  not  limited  thereto.  It  includes  Intra- 
state  transmission  as  well  as  that  of  private  letters,  or  gifts, 
which  are  not  at  all  matters  of  commerce  either  Inter-state  or 
otherwise,  and  so  cannot  be  upheld  as  a  regulation  of  Inter- 
state commerce.2 

For  these  reasons  the  power  exercised  is  not  vested  in 
the  Congress  at  all. 

a  2.  The  postal  laws  against  "obscene"  literature  are  void 
under  the  constitutional  prohibition  against  the  abridgment  of 
freedom  of  speech  and  of  the  press.  Likewise  all  similar  State 
legislation  is  void  under  State  Constitutions. 

Syllabus  of  the  argument :   This  constitutional  guarantee  of 

'"ON  THE  IMPLIED  POWER  TO  EXCLUDE  'OBSCENE'  IDEAS  FROM  THE  MAILS." 
Central  Law  Journal,  V.  65,  p.  177.  (Sept.  6,  1907.) 

2Howard  vs.   111.   Cent.   R.    R.,   28   Sup.   Ct.    Rep.   141. 

12 


STATEMENT    OF   THE    CONTENTIONS. 

freedom  of  the  press  is  violated  whenever  there  is  an  artificial 
legislative  destruction  or  abridgment  of  the  greatest  liberty 
consistent  with  an  equality  of  liberty,  in  the  use  of  the  printed 
page  as  a  means  of  disseminating  ideas  of  conflicting  tendency. 
The  use  of  printing  is  but  an  extended  form  of  speech.  Free- 
dom of  speech  and  press  is  abridged  whenever  natural  opportu- 
nity is  in  any  respect  denied,  or  its  exercise  punished,  merely 
as  such;  that  is,  in  the  absence  of  actual  injury,  or  when  by 
legislative  enactment  there  is  created  an  artificial  inequality 
of  opportunity,  by  a  discrimination  according  to  the  subject- 
matter  discussed,  or  a  discrimination  as  between  different  ten- 
dencies in  the  different  treatment  of  the  same  subject-matter,  or 
according  to  differences  of  literary  style  in  expressing  the  same 
thought.  All  this  is  now  accomplished  under  obscenity  laws  as 
at  present  administered,  and  therefore  our  laws  upon  the  subject 
are  unconstitutional. 

This  contention  involves  the  establishment  of  a  new  defini- 
tion of  "freedom  of  the  press,"  based  upon  the  viewpoint  that 
the  framers  of  the  Constitution  intended  by  that  clause  to  en- 
large the  intellectual  liberty  of  the  citizen  beyond  what  it  had 
theretofore  been  under  the  English  system.  Some  State  courts 
have  erroneously  assumed  that  the  only  purpose  was  to  ex- 
change a  censorship  before  publication  for  criminal  punishment 
after  publication,  without  the  least  enlargement  of  the  right  to 
publish  with  impunity  so  long  as  no  one  is  injured.  The  con- 
tention will  be  that  the  Constitution  changed  liberty  of  the  press 
by  permission,  to  Liberty  as  a  right,  because  thus  only  can  all 
citizens  be  protected  in  their  proper  opportunity  to  hear  and 
read  all  that  others  have  to  offer,  and  without  which  freedom 
unrestricted  there  is  no  intellectual  liberty  at  all  as  a  matter 
of  right.8 

X.    3.     The  "obscenity"  laws  violate  the  constitutional  guaran- 
tee of  "due  process  of  law." 

Syllabus  of  the  argument :  The  statute  furnishes  no  stand- 
ard or  test  by  which  to  differentiate  the  book  that  is  obscene 
from  that  which  is  not,  because  of  which  fact  the  definition  of 
the  crime  is  uncertain.  Furthermore,  it  is  a  demonstrable  fact 
of  science  that  obscenity  and  indecency  are  not  sense-perceived 

•"THE  JUDICIAL  DESTRUCTION  OF  FREEDOM  OF  THE  PRESS,"  in 
Government,  for  Dec.,  1908;  Albany  Law  Journal,  Nov.,  1908. 

"THE  SCIENTIFIC  ASPECT  OF  'DUE  PROCESS  OF  LAW,'  "  in  Ameri- 
can Law  Re-view,  for  June,  1908. 

"LIBERTY  OF  CONSCIENCE,  SPEECH  AND  PRESS,"  in  The  Liberal 
Review,  for  August  and  Sept.,  1906. 

"FREEDOM  OF  THE  PRESS  AND  'OBSCENE'  LITERATURE,"  N.  Y., 
1007. 

13 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

qualities  of  a  book,  but  are  solely  and  exclusively  a  condition 
or  effect  in  the  reading  mind.  This  is  evidenced  in  the  result 
that  it  has  been,  and  always  will  be,  impossible  to  state  a  defini- 
tion or  test  of  obscenity  in  terms  of  the  qualities  of  a  book,  or 
such  a  one  that,  solely  by  applying  the  test  to  any  given  book, 
accuracy  and  uniformity  of  result  must  follow,  no  matter  who 
applies  the  test,  nor  such  that  when  there  is  no  dispute  about 
any  physical  fact  of  present  or  past  existence,  any  man  may 
know  in  advance  of  a  trial  and  a  verdict,  solely  from  reading 
the  statute,  what  the  verdict  must  be  as  to  the  obscenity,  and 
consequent  criminality,  of  every  given  book.  Neither  the 
statute,  nor  the  judicially  created  tests  of  obscenity  or  in- 
decency, furnish  any  certain  advance  information  as  to  what 
must  be  the  verdict  of  a  jury  upon  the  speculative  problem  of 
the  psychological  effect  of  a  given  book  upon  an  undescribed 
hypothetical  reader.  Their  verdict  is,  therefore,  not  according 
to  the  letter  of  any  general  law,  but  according  to  their  whim, 
caprice  and  prejudices,  or  varying  personal  experiences  and 
different  degrees  of  sexual  hyperaestheticism  and  varying  kinds 
and  quality  of  intelligence  upon  the  subject  of  sexual 
psychology,  or  moral  idiosyncracies.  In  consequence,  every 
such  verdict  is  according  to  a  test  of  obscenity  personal  to 
the  court  or  jury  in  such  a  case,  and  binding  upon  no  other 
court  or  jury  and  not  according  to  any  general  law  or  uniform 
rule.  One  of  the  reasons  underlying  this  uncertainty  is  the  fact 
that  "obscenity"  is  not  a  quality  inherent  in  a  book  or  picture, 
but  wholly  and  exclusively  a  contribution  of  the  contemplating 
mind,  and  hence  cannot  be  defined  in  terms  of  the  qualities  of 
a  book  or  picture,  but  is  read  into  them.4 

(a)  The  first  result  of  this  uncertainty  is  that  the  statute  of 
Congress  herein  involved  creates  no  certain  or  general  rule  of 
conduct  for  the  guidance  of  citizens,  and  does  not  enable  them 
to  know  if  their  proposed  act  is  in  violation  of  the  statute,  and 
therefore  every  indictment  and  conviction  under  said  statute  is 
without  due  process  of  law.  Unless  the  statute  so  defines  the 
crime  that  by  the  application  of  its  letter  alone  every  person 
of  ordinary  intelligence  must  always  draw  the  same  line  of 

•'•WHAT  IS  CRIMINALLY  'OBSCENE.'  "  Proceedings  XV.  International 
Medical  Congress,  Lisbon,  Portugal,  April,  1906;  Albany  Law  Journal,  for  July, 
1906. 

"LEGAL  OBSCENITY  AND  SEXUAL  PSYCHOLOGY,"  in  The  Medico- 
Legal  Journal  for  Sept.,  1907,  and  The  Alienist  and  Neurologist,  for  Aug.,  1908. 

"VARIETIES  OF  OFFICIAL  MODESTY,"  in  the  American  Journal  of 
E-ittn-nics,  for  Dec.,  1907;  Albany  Law  Journal,  Aug.,  1908. 

"FREEDOM  OF  THE  PRESS  AND  'OBSCENE'  LITERATURE,"  N.  Y., 
190A 

14 


STATEMENT    OF    THE    CONTENTIONS. 

demarkation  between  the  books  or  pictures  which  are  pro- 
hibited and  those  which  are  not,  then  the  statute  is  void  for 
uncertainty  under  the  old  maxim,  "Where  the  law  is  uncertain 
there  is  no  law,"  and  consequently  there  is  no  "due  process  of 
law." 

(b)  Furthermore:  "The  doctrine  is  fundamental  in  Eng- 
lish and  American  law  that  there  can  be  no  constructive 
offenses."  These  are  of  four  kinds.  First,  where  the  act  to 
be  punished  is  by  judicial  construction  brought  within  a  statute 
whose  plain  and  literal  meaning  does  not  cover  it.  In  this  case 
the  statutory  criteria  of  guilt  are  assumed  to  be  certain  as  to 
meaning.  The  second  class  of  constructive  offenses  arises 
where  the  statutory  criteria  of  guilt  are  ambiguous,  and  the 
courts  presume,  by  judicial  legislation,  to  penalize  an  act 
which  is  not  clearly  within  every  possible,  plain  and  certain 
meaning  of  the  statute.  Here  the  courts  make  a  legislative 
choice  as  to  which  meaning  is  to  be  enforced.  The  third  class 
of  constructive  offenses  arises  from  an  uncertainty  (as  distin- 
guished from  an  ambiguity)  in  the  statutory  criteria  of  guilt. 
Here,  there  is  a  total  absence  of  criteria  of  guilt,  and  these 
become  wholly  a  matter  of  judicial  creation  (as  distinguished 
from  selection  when  the  statute  is  only  ambiguous).  Because 
of  the  uncertainty — that  is,  of  a  total  absence  of  definite  statu- 
tory criteria  of  guilt — under  all  of  the  "obscenity"  laws,  noth- 
ing is  ever  unavoidably  certain  within  the  letter  of  the  statute. 
It  is  necessary  in  order  to  secure  conviction  that  judicial,  so- 
called,  construction,  or,  more  accurately  speaking,  judicial  legis- 
lation, be  enacted  which  creates  fhe  criteria  of  guilt  not  fur- 
nished by  the  statute,  from  which  it  follows  that  all  guilt  here- 
under  is  but  constructive  guilt,  and  the  crime  only  a  construc- 
tive, that  is,  a  judicially  created  crime,  and  not  due  process  of 
law. 

The  fourth  class  of  constructive  crimes  are  those  which  do 
come  within  the  actual  and  literal  definition  of  the  criminal 
statute,  but  where  that  predicates  crime  upon  conduct  which  is 
only  a  constructive,  and  not  a  real  and  actually  achieved 
material  injury,  to  any  living  being,  nor  conditioned  upon  any 
imminent  danger  thereof,  the  existence  of  which  is  determin- 
able  by  any  known  law  of  the  physical  universe.  In  such  a 
case,  the  reality  and  materiality  of  the  injury,  which  is  an  in- 
dispensable foundation  of  all  criminal  statutes,  is  entirely  ab- 
sent, except  as  a  matter  of  legal  fiction,  and  not  as  a  material 

15 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

actuality  described  in  the  letter  of  the  law.  The  same  proposi- 
tion may  be  thus  stated:  One  is  being  punished  for  a  con- 
structive crime  whenever  the  alleged  crime  consists  only  in 
the  dissemination  of  ideas,  if  under  the  statute  the  penalty 
attaches  upon  conditions  other  than  that  the  ideas  have  actually 
resulted  in  material  injury  to  some  one.  Every  psychologic 
crime,  so  long  as  it  remains  a  mere  psychological  offense  whose 
injury  is  constructive  only,  can  never  become  anything  except 
a  constructive  crime.  Such  purely  constructive  wrong  and  con- 
structive crime  cannot  be  penalized  in  any  country  whose  con- 
stitution was  ordained  to  promote  liberty,  and  therefore  such  a 
statute  cannot  constitute  "due  process  of  law."5 

4.  The  statute  in  practical  operation  violates  the  constitu- 
ional  guarantee  against  ex  post  facto  laws. 

Syllabus  of  the  argument :  The  second  result  of  this  uncer- 
tainty of  the  statute  is  that  every  indictment  and  conviction 
under  said  statute  is  always  according  to  an  ex  post  facto  law  or 
standard  of  judgment,  specially  created  by  the  court  or  jury  for 
each  particular  case.  The  Congress  of  the  United  States  has  no 
power  to  authorize  a  jury  to  determine  guilt  or  crime  according- 
to  varying  personal  standards,  such  as  must  control  the  opinion 
of  a  jury  on  the  psychological  tendency  of  a  book  upon  an  unde- 
scribed  hypothetical  reader,  and  which  standard,  because  it  is 
personal  to  the  juror,  in  the  nature  of  things  cannot  be  known  at 
the  time  the  alleged  act  was  committed,  nor  before  the  rendition 
of  a  verdict  thereon. 

A  conviction  and  punishment  under  such  circumstances  is 
always  by  virtue  of  ex  post  facto  legislation  on  the  part  of  the 
court  or  jury,  and  is  none  the  less  unconstitutional  because  the 
attempted  delegation  of  power  to  enact  it  was  made  before  the 
conduct  to  be  punished.  All  criteria  of  guilt  must  be  found 
in  a  prior  statute.6 

•"THE  SCIENTIFIC  ASPECT  OF  'DUE  PROCESS  OF  LAW,'  "  in  The 
American  Law  Review,  for  June,  1908. 

"STATUTORY  UNCERTAINTY  AND  'DUE  PROCESS  OF  LAW,'  "  in  The 
Central  Law  Journal,  for  Jan.  3,  1908. 

"THE  HISTORICAL  INTERPRETATION  OF  'LAW,'  "  in  The  Albany  Law 
Journal,  for  April,  1908. 

"  'DUE  PROCESS  OF  LAW,'  IN  RELATION  TO  STATUTORY  UNCER- 
TAINTY AND  CONSTRUCTIVE  OFFENSES,"  N.  Y.,  1908. 

"CONSTRUCTIVE  OFFENSES  DEFINED,"  in  The  Central  Law  Journal, 
Dec.  18,  1908. 

6"THE  SCIENTIFIC  ASPECT  OF  'DUE  PROCESS  OF  LAW,'  "  in  The 
American  Law  Review,  for  June,  1908. 

"STATUTORY  UNCERTAINTY  AND  'DUE  PROCESS  OF  LAW,'"  in 
The  Central  Law  Journal,  for  Jan.  3,  1908. 

"THE  HISTORICAL  INTERPRETATION  OF  'LAW,'  "  in  The  Albany  Law 
Journal,  for  April,  1908. 

"'DUE  PROCESS  OF  LAW'  IN  RELATION  TO  STATUTORY  UNCER- 
TAINTY AND  CONSTRUCTIVE  OFFENSES,"  N.  Y..  1908. 

16 


STATEMENT   OF   THE   CONTENTIONS. 

5.  The  statute  in  its  practical  operation  violates  the  seventh 
amendment  to  the  Constitution  in  this :  By  reason  of  the  want 
of  definition  of  the  crime,  by  a  statutory  statement  of  the 
criteria  of  guilt,  the  courts  submit  to  the  jury  a  determination 
of  the  question  of  law  as  to  what  shall  constitute  "obscenity." 
Congress  has  no  power  to  make  juries  the  judge  of  the  law, 
especially  not  in  cases  wherein  they  were  not  authorized  to  be 
such  judges  under  the  common  law  of  England.  No  such  acts 
as  are  now  punished  under  "obscene"  literature  were  ever 
included  under  the  common  law  crime  of  "obscene  libel."7 

Furthermore,  Fox's  libel  act,  which  made  English  juries 
in  libel  cases  the  judges  of  the  law,  as  well  as  of  the  facts,  did 
not  pass  the  English  Parliament  until  1792. 

ARE  THE  FOREGOING  OPEN  QUESTIONS? 

Is  the  constitutionality  of  our  moral  censorship  of  literature 
by  the  post  office  department  still  an  open  question?  An  an- 
swer to  this  problem  can  be  satisfactorily  reached  only  by  an- 
alyzing all  the  judicial  mention  of  the  subject,  in  the  light  of 
the  foregoing  assignable  reasons  for  asserting  the  unconsti- 
tutionally of  these  laws,  and  in  the  light  of  the  following  words 
from  Chief  Justice  MARSHALL  : 

"It  is  a  maxim  not  to  be  disregarded  that  general  expres- 
sions in  every  opinion  are  to  be  taken  in  connection  with  the 
case  in  which  these  expressions  are  used.  If  they  go  beyond 
the  case  they  may  be  respected,  but  ought  not  to  control  the 
judgment  in  a  subsequent  suit  when  the  very  point  is  presented 
for  decision.  The  question  actually  before  the  court  is  investi- 
gated with  care  and  considered  in  its  full  extent.  Other  prin- 
ciples which  may  serve  to  illustrate  it  are  considered  in  their 
relation  to  the  case  decided,  but  their  possible  bearing  in  all 
other  cases  is  seldom  investigated."8 

The  first  case  to  make  reference  to  the  postal  censorship 
of  the  mails  is  Ex  Parte  Jackson,  96  U.  S.  727. 

This  was  an  application  for  a  writ  of  habeas  corpus  and 
certiorari,  after  conviction,  for  mailing  lottery  matter.  The 
only  question  raised  in  the  argument  for  the  petitioner  is 
summed  up  in  these  words: 

"So  long  as  the  duty  of  carrying  the  mails  is  imposed  upon 
Congress,  a  letter  or  packet  which  was  confessedly  mailable 
matter  at  the  time  of  the  adoption  of  the  Constitution  cannot 

'"OBSCENE  LITERATURE  UNDER  THE  COMMON-LAW,"  Albany  Lav 
Journal,  May,  1907. 

•Cohens  v.  Virginia,  6  Wheat.  398.  See,  also,  Corn  Exchange  Bank  r.  Pe»- 
body,  111  App.  Div.  553,  98  N.  Y.  Sup.  78. 

17 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

be  excluded  from  them,  provided  the  postage  be  paid  and  other 
regulations  be  observed.  Whatever  else  has  been  declared  to  be 
mailable  matter  *  *  *  all  of  which  were  unknown  to  the 
postal  system  when  the  convention  concluded  its  labor  in 
1787,  may  in  the  discretion  of  Congress  be  abolished." 

No  other  question  was  raised  and  no  argument  based  upon 
the  construction  of  the  expressed  or  implied  power  of  Congress 
was  presented.  To  enforce  the  above  argument  and  reduce 
the  contrary  position  to  an  absurdity,  as  it  was  believed,  coun- 
sel for  the  convict  said:  "If  Congress  can  exclude  from  the 
mail  a  letter  concerning  lotteries  which  have  been  authorized  by 
State  legislation,  and  refuse  to  carry  it  by  reason  of  their  as- 
serted injurious  tendency,  it  may  refuse  to  carry  any  other 
business  letter."  No  arguments  of  any  nature  as  to  the 
correctness  of  such  suggestion  of  power,  or  the  limitations, 
if  any,  by  which  the  Constitution  does  or  does  not  hedge 
about  this  alleged  arbitrary  power,  were  even  mentioned,  much 
less  discussed.  The  Attorney-General  rested  the  contrary  view 
solely  upon  the  dogmatic  and  very  doubtful  assertion  that  "if 
there  is  a  right  to  exclude  any  matter  from  the  mails,  the 
extent  of  its  exercise  is  one  of  legislative  discretion." 

The  court  did  not  have  before  it  any  question  except  as  to 
lotteries,  and  then  only  in  so  far  as  it  related  to  the  power 
of  Congress  to  declare  non-mailable  what  custom  had  sanc- 
tioned to  be  mailable  at  the  time  of  the  adoption  of  the  Consti- 
tution. The  court  indulged  in  some  dictum  based  upon  the 
loose  talk  of  counsel  concerning  side  issues.  In  that  dictum, 
however,  the  court  distinctly  negatives  the  idea  suggested  by 
the  United  States  attorney,  that  there  are  no  limits  to  the 
power  of  regulating  the  mails,  and  some  such  limitations  are 
pointed  out  by  the  decision  without  negativing  the  existence 
of  other  limitations. 

The  court  among  other  things  said :  "The  validity  of  legis- 
lation prescribing  what  should  be  carried  and  its  weight  and 
form  and  the  charges  to  which  it  should  be  subjected  has 
never  been  questioned.  What  shall  be  mailable  has  varied 
at  different  times,  changing  with  the  facility  of  transportation 
over  the  post  roads.  At  one  time  only  letters,  newspapers, 
magazines,  pamphlets  and  other  printed  matter,  not  exceeding 
eight  ounces  in  weight  were  carried;  afterwards  books  were 
added  to  the  list,  and  now  small  packages  of  merchandise,  not 

18 


STATEMENT    OF    THE    CONTENTIONS. 

exceeding  a  prescribed  weight,  as  well  as  books  and  printed 
matter  of  all  kinds,  are  transported  in  the  mail. 

"The  power  possessed  by  Congress  embraces  the  regulation 
of  the  entire  postal  system  of  the  country.  The  right  to  desig- 
nate what  shall  be  carried  necessarily  involves  the  right  to 
determine  what  shall  be  excluded.  The  difficulty  attending  the 
subject  arises  not  from  the  want  of  regulations  as  to  what 
shall  constitute  mail  matter,  but  from  the  necessity  of  enforc- 
ing them  consistently  with  rights  reserved  to  the  people,  of 
far  greater  importance  than  the  transportation  of  mail."  Then 
some  limitations  of  the  regulative  power  are  pointed  out.  With- 
out claiming  to  enumerate  them  all,  the  court  continues  in  part : 

"The  constitutional  guaranty  of  the  right  of  the  people 
to  be  secure  in  their  papers  against  unreasonable  searches  and 
seizures  extends  to  their  papers  thus  closed  against  inspection, 
wherever  they  may  be.  Whilst  in  the  mail  they  can  be  opened 
and  examined  under  like  warrant  issued  upon  similar  oath  or 
affirmation  as  is  required  when  papers  are  subjected  to  search 
in  one's  own  household.  All  regulations  adopted  as  to  mail 
matter  of  this  kind  must  be  in  subordination  to  the  great  prin- 
ciple embodied  in  the  fourth  amendment  to  the  Constitution. 

"Nor  can  any  regulation  be  enforced  against  the  transpor- 
tation of  printed  matter  in  the  mail,  which  is  open  to  examina- 
tion, so  as  to  interfere  in  any  manner  with  the  freedom  of  the 
press.  [What  might  constitute  such  interference  is  not  indi- 
cated.} Liberty  of  circulating  is  as  essential  to  that  freedom 
as  liberty  of  publishing;  indeed,  without  the  circulation  the 
publishing  would  be  of  little  value.  If,  therefore,  printed 
matter  be  excluded  from  the  mails,  its  transportation  in  any 
other  way  cannot  be  forbidden  by  Congress."  [Since  then, 
and  in  spite  of  this  dictum,  Congress  has  attempted  to  forbid 
other  means  of  transmission,  in  addition  to  post  office  suppres- 
sion.] 

"In  excluding  various  articles  from  the  mail,  the  object 
of  Congress  has  not  been  to  interfere  with  the  freedom  af  the 
press,  or  with  any  other  rights  of  the  people,  but  to  refuse  its 
facilities  for  the  distribution  of  matters  deemed  injurious  to 
the  public  morals. 

"All  that  Congress  meant  by  that  act  was  that  the  mail 
would  not  be  used  to  transport  such  corrupting  publications 
and  articles,  and  that  any  one  who  attempted  to  use  it  for  that 
purpose  should  be  punished."* 

•Ex  parte  Jackson,  96  U.  S.  727  to  7S«. 

19 


OBSCENE   LITERATURE   AND  CONSTITUTIONAL   LAW. 

Several  propositions  are  made  clear  from  the  reading  of  this 
dictum.  The  first  is,  there  are  some  limitations  upon  the  congres- 
sional power  to  regulate  the  mails.  Second,  that  the  court 
was  not  called  upon,  nor  attempted,  to  enumerate  all  of 
those  limitations.  Third,  that  what  was  said  about  freedom  of 
press  and  postal  regulations  excluding  obscene  literature  was 
not  at  all  necessary  to  a  decision  of  the  question  before  the 
court,  nor  was  this  dictum  based  upon  any  argument  attempting 
to  construe  the  meaning  of  "freedom  of  the  press."  Fourth, 
the  court  admitted  that  Congress  could  not  make  a  regulation 
such  as  would  abridge  the  freedom  of  the  press,  but  the  decision 
does  not  attempt  to  point  out  the  kind  of  postal  regulation  which 
would  constitute  such  an  abridgment,  nor  the  test  by  which 
such  regulation  may  be  judged  an  abridgment  of  the  freedom 
of  the  press. 

Applying  the  test  of  Cohens  v.  Virginia,10  it  follows  that 
nothing  in  this  case  is  conclusive  upon  any  feature  of  the  con- 
stitutionality of  postal  laws  against  "obscene"  literature. 

The  next  two  cases  in  which  this  subject  is  mentioned  are 
in  re  Dupre,11  and  in  re  Rapier.12  These  two  cases  were  ar- 
gued together  and  decided  together,  and  in  both  the  precise 
matter  under  discussion,  as  in  the  former  case,  was  lotteries 
and  the  mail. 

Counsel  for  Dupre  says:  "We  are  not  at  this  moment  ob- 
jecting to  the  statute  as  invalid  because  aimed  to  accomplish  an 
object  beyond  the  power  of  the  Congress,  or  because  forbidden 
by  some  express  prohibition  of  the  Constitution,"  but  because 
the  means  employed  were  not  legitimate  to  the  end  of  main- 
taining the  mail  service.  However,  counsel  for  the  accused 
did  not  meet  the  real  issue,  which  may  be  thus  stated :  Congress 
has  power  to  prohibit  gambling  on  premises  over  which  it  has 
jurisdiction,  as  in  post  offices  owned  by  the  government,  and 
in  the  Territories  and  District  of  Columbia,  and,  as  an  incident 
to  that  power,  might  prohibit  gambling  through  the  mails.  It 
was  argued  that  absence  of  right  to  exclude  lottery  advertise- 
ments did  not  involve  absence  of  right  to  exclude  obscenity, 
because  the  latter  was  "undoubtedly"  mala  in  se  and  the 
former  only  mala  prohibita.  Again  the  attorney  says:  "Our 
argument  in  no  manner  involves  the  consequence  that  existing 
legislation  of  Congress,  excluding  obscene  books  and  pictures 

»»8  Wheat.  398. 
"148  U.   S.  110. 
"141  U.   S.   110. 

20 


STATEMENT   OF   THE   CONTENTIONS. 

from  the  mails,  is  invalid,  as  abridging  the  freedom  of  speech." 

Furthermore,  it  was  not  claimed  that  the  matter  constituting 
the  content  of  lottery  advertisements  and  tickets  alone  involved 
an  exercise  of  the  freedom  of  the  press,  but  only  that  they 
incidentally  affected  the  press  by  denying  pulishers  the  rev- 
enue to  be  derived  from  advertising,  etc. 

The  court  in  Dupre  case  (same  opinion  as  Rapier  case), 
after  denying  a  distinction  between  mala  in  se  and  mala  pro- 
hibita  as  urged,  continues  thus: 

"Nor  are  we  able  to  see  that  Congress  can  be  held  in  an 
enactment  to  have  abridged  the  freedom  of  the  press.  The  cir- 
culation of  newspapers  is  not  prohibited,  but  the  government 
declines  itself  to  become  an  agent  in  the  circulation  of  printed 
matter  [to  wit,  lottery  advertisements  and  tickets]  which  it 
regards  as  injurious  to  the  people.  The  freedom  of  communi- 
cation is  not  abridged  within  the  intent  and  meaning  of  the 
constitutional  provision,  unless  Congress  is  absolutely  destitute 
of  any  discretion  as  to  what  shall  or  shall  not  be  carried  in  the 
mails  and  compelled  arbitrarily  to  assist  in  the  dissemination 
of  matters  condemned  by  its  judgment,  through  the  govern- 
mental agencies  which  it  controls."  Then  the  court  reaffirms 
the  Jackson  case. 

I  may  admit  the  right  of  Congress  to  exclude  dynamite  from 
the  mails,  or  any  other  actual  instrument  whose  transmission  is 
a  material  element  in  the  commission  of  an  actual  crime,  over 
which  Congress  has  jurisdiction,  but  it  does  not  yet  follow  that 
Congress  has  the  power  to  exclude  "incendiary"  opinions  from 
the  mails,  nor  unpopular  opinions  about  the  ethics  of  lotteries 
or  of  sex. 

So  Congress,  within  its  geographical  jurisdiction,  which 
includes,  among  other  places,  the  post  office  buildings  owned 
by  the  government,  may  make  gambling  a  crime,  and,  as  an 
incident  to  that  power,  Congress  may  punish  or  prohibit  the 
actual  commission  of  gambling  through  the  use  of  the  postal 
system.  It  does  not  follow  that  it  can  also  punish  the  con- 
structive crime  of  sending  through  the  mail  matter  which 
merely  expresses  or  suggests  the  idea  of  gambling,  entirely 
separate  from  any  particular  scheme  for  accomplishing  gam- 
bling. There  is  all  the  difference  in  the  world  between  punish- 
ing the  use  of  the  mails  for  disseminating  opinions  advocating 
the  morality  of  gambling  and  punishing  the  use  of  mails  to 
accomplish  the  crime  of  gambling.  To  decide  that  Congress 

21 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

has  the  power  to  do  the  latter,  does  not  in  the  remotest  de- 
gree imply  that  it  has  the  power  to  do  the  former.  Admitting 
that  Congress  has  power  in  some  places  to  punish  certain  sex- 
ual misconduct,  it  does  not  follow  that  it  may  punish  purely 
intellectual  crimes  predicated  merely  upon  sex  discussions 
through  the  mails.  It  follows  that  nothing  which  has  been 
directly  or  necessarily  decided  in  any  of  the  lottery  cases 
has  any  bearing  whatever  upon  the  present  controversy,  as 
set  forth  in  the  foregoing  statement  of  contentions. 

Admitting  for  the  sake  of  the  argument  that  courts  have 
rightfully  decided  that  Congress  has  the  power  to  prohibit 
the  use  of  the  mails  for  the  accomplishment  of  the  actual 
crimes  of  fraud  and  gambling,  it  does  not  follow,  and  has  not 
been  decided,  that  the  Congress  has  also  power  to  make  a 
constructive  crime  of  such  an  act  as  using  the  mails  for  the 
dissemination  of  a  truthful  scientific  book  on  the  physiology, 
psychology  or  hygiene  of  sex,  or  of  spreading  through  the 
mails  legislatively  unapproved  ideas  about  sex-ethics.  It  may 
still  be  true,  notwithstanding  all  that  courts  have  thus  far  said, 
and  even  including  the  most  rash  dictum,  that  Congress  has  not 
the  power,  implied  from  its  authority  to  established  post  offices, 
of  creating  a  constructive  crime  out  of  the  dissemination  of 
unpopular  ideas,  under  the  pretense  of  regulating  the  mails. 

In  School  of  Magnetic  Healing  v.  McAnnulty13  the  court 
says  this:  "Conceding,  for  the  purpose  of  this  case,  that 
Congress  has  full  and  absolute  jurisdiction  over  the  mails, 
and  that  it  may  provide  who  may  and  who  may  not  use  the 
mails,  and  that  its  action  is  not  subject  to  review  by  the  courts, 
and  also  conceding  the  conclusive  character  of  the  determina- 
tion of  the  Postmaster-General,"  etc.  (p.  107).  Then  the 
court  goes  on  to  hold  that  even  conceding  all  that,  "for  the 
purposes  of  this  case,"  the  postmaster  had  transcended  his 
power.  Here  again  it  is  clear  that  nothing  was  either  directly 
involved  or  decided  which  bears  upon  the  extent  or  limitations 
of  the  implied  power  of  Congress  to  regulate  the  mails,  or  the 
constitutional  questions  hereinbefore  suggested. 

The  next  case  is  Public  Clearing  House  v.  Coyne14. 

This  was  an  application  for  an  injunction  against  the  post- 
master of  Chicago  for  relief  against  a  fraud  order.  After 
restating  and  reaffirming,  by  way  of  dictum,  the  case  of  Ex 
Parte  Jackson,  the  court  continues  its  dictum  thus :  "While  it 

"187  U.   S.   107. 
"194   U.    S.    607. 

22 


STATEMENT    OF   THE    CONTENTIONS. 

may  be  assumed  for  the  purpose  of  this  case  that  Congress 
would  have  no  right  to  extend  to  one  the  benefits  of  its  postal 
service  and  deny  it  to  another  person  in  the  same  class  and 
standing  in  the  same  relation  to  the  government,  it  does  not 
follow  that  under  its  power  to  classify  mailable  matter,  apply- 
ing different  rates  of  postage  to  different  articles,  and  pro- 
hibiting some  altogether,  it  may  not  also  classify  the  recipients 
of  such  matter,  and  forbid  the  delivery  of  letters  to  such 
persons  or  corporations  as  in  its  judgment  are  making  use  of 
the  mails  for  the  purpose  of  fraud  or  deception  or  the  dis- 
semination among  its  citizens  of  information  of  a  character 
calculated  to  debauch  the  public  morality."15 

Again  nothing  was  before  the  court  which  elicited  argument 
or  involved  a  decision  upon  the  power  of  Congress  to  differen- 
tiate between  mail  matter  according  to  its  approval  or  disap- 
proval of  the  opinion  transmitted,  or  the  psycho-sexual  states  of 
the  postal  patrons.  The  only  direct  bearing  of  this  decision 
upon  the  question  as  to  the  extent  of  the  implied  power  to  regu- 
late mails  is  that  the  judicial  dictum  suggests  a  limitation  upon 
that  power  not  heretofore  suggested.  It  also  leaves  the  whole 
matter  of  other  limitations  on  the  implication  of  absolute  power 
over  mails  an  open  question. 

No  case  directly  involving  the  constitutionality  of  the  postal 
law  against  obscene  literature  has  ever  gone  to  the  Supreme 
Court  for  decision,  nor  does  it  appear  from  the  reported  cases 
in  the  lower  courts  that  any  serious  contention  has  ever  been 
there  made  against  their  constitutionality.  The  foregoing 
analysis  already  shows  that,  in  so  far  as  the  logic  of  the  dictum 
in  the  Jackson  case  has  been  taken  to  mean  that  there  were  no 
limitations  upon  congressional  control  over  the  mails,  even 
that  dictum  has  been  clearly  misconstrued,  as  is  shown  by  the 
numerous  judicial  suggestions  to  the  effect  that  there  are  some 
limitations. 

We  conclude,  therefore,  that  every  objection  to  be  herein- 
after urged  against  the  constitutionality  of  these  laws,  as  here- 
in-above suggested,  is  not  only  undecided,  but  free  from  the 
embarrassment  of  even  an  adverse  dictum.  If  there  is  any 
doubt  as  to  this  conclusion  it  must  be  dissipated  by  the  declara- 
tion of  the  Supreme  Court  itself,  where  it  says:  "The  con- 
stitutionality of  this  law  [against  obscene  literature]  we  believe 
has  never  been  attacked."16 

"Public  Clearing  House  v.   Coyne,   194  U.   S.   507. 
'•Public  Clearing  House  v.  Coyne,  194  U.   S.   507. 

23 


CHAPTER  II. 
ON  THE  ADVERSE  EMOTIONAL  PREDISPOSITION 

The  worst  insult  I  ever  heard  charged  against  any  court 
was  an  assertion  that  its  judge  was  without  prejudice  upon 
any  question  of  law.  Our  laws  against  obscenity  in  literature 
have  been  upon  the  Federal  statute  books  about  thirty-five 
years  and  elsewhere  have  existed  even  longer.  After  this  lapse 
of  time,  one  who  presumes  to  raise  new  objections  for  the  an- 
nullment  of  those  laws,  without  assuming  the  existence  of  an 
adverse  judicial,  as  well  as  popular,  predisposition  might  have 
his  conduct  construed  as  an  insult  to  judicial  intelligence,  or 
at  least  as  a  serious  reflection  upon  his  own. 

Long  public  acquiescence,  the  force  of  inumerable  prece- 
dents, and  an  "eminently  respectable"  indorsement  of  these 
laws,  combined  with  the  natural  and  proper  conservatism  of  the 
judiciary,  all  conduce  necessarily  to  create  a  popular  and  judicial 
predisposition  against  my  contentions.  The  special  emotional 
intensity,  which  is  almost  certain  to  accompany  a  discussion 
of  such  laws  as  are  here  under  consideration,  impairs  the  human 
capacity  for  a  dispassionate  rational  weighing  of  argument. 
The  practical  importance  of  that  mental  attitude,  in  creating 
a  general,  strong  and  perhaps  a  passionate  hope  that  my  con- 
tention will  fail,  would  be  very  much  and  very  foolishly  under- 
estimated by  me  if  I  omitted  all  direct  effort  to  re-establish  an 
open-minded  hospitality  toward  the  arguments  to  be  advanced 
later  on. 

Furthermore,  I  have  read  all  the  officially  reported  decisions 
in  "obscenity"  cases,  and  I  have  read  many  unofficial  reports  of 
instructions  to  juries  and  other  accounts  of  the  conduct  of 
courts  in  such  trials.  According  to  many  of  these  reports,  even 
the  seemings  of  judicial  calm  have  been  abandoned,  and  that 
which  is  false  as  a  matter  of  science  has  been  dogmatically 
asserted  in  language  which  suggests  a  substitution  of  passionate 
vituperation  for  logical  processes.  From  the  information  thus 

24 


ON   THE    ADVERSE    EMOTIONAL    PREDISPOSITION. 

acquired,  from  my  acquaintance  with  the  psychology  of  modesty 
and  my  knowledge  of  human  nature,  I  know  how  easy  it  is  to 
transform  a  proper  and  necessary  conservatism  into  a  passion- 
ate "will  to  believe,"  when,  as  in  this  class  of  cases,  conserva- 
tism is  associated  with  the  sensitive  emotions  having  their 
origin  in  our  sex-natures.  I  believe  it  is  precisely  this  intellect- 
befogging  combination  which  has  precluded  the  prior  presenta- 
tion of  the  contentions  now  to  be  urged. 

I  am  well  aware  that,  in  theory,  our  courts  have  nothing 
to  do  with  the  expediency  of  the  laws,  when  passing  upon  their 
constitutionality.  But  I  also  know  that  the  interests  of  the 
litigant  have  very  much  to  do  with  the  judicial  opinion  about 
their  expediency,  because  too  often  that  unconsciously  deter- 
mines whether  the  judge  will  be  impelled  to  exercise  his  great- 
est ingenuity  toward  a  discovery  of  reasons  which  will  tend 
to  uphold  or  to  annul  the  statutes  under  investigation.  Those 
who  disbelieve  in  freedom  of  the  press  naturally  and  unavoid- 
ably will  see  at  once  all  or  many  of  those  considerations  which 
conduce  to  such  a  "construction"  of  the  Constitution  as  will 
make  an  accomplished  fact  of  that  curtailment  of  liberty  which 
they  desire.  If  this  mental  predisposition  is  accompanied  by 
intense  emotional  approval,  as  in  this  class  of  cases  it  is  almost 
certain  to  be,  a  restoration  of  such  open  mindedness  as  leaves 
the  individual  amenable  to  accurate  weighing  of  argument  is 
all  but  impossible  except  to  the  most  highly  developed  intellect. 

As  to  the  legislation  against  "obscene"  literature,  the 
public  conscience  feels  the  same  passionate  "moral"  necessity 
which  once  impelled  judges  to  exercise  their  wits  and  their 
might  in  a  crusade  against  witchcraft  and  verbal  treason.  In 
Harper's  Magazine,  for  Sept.,  1907,  we  have  a  graphic  portrayal 
of  the  prejudiced  zealous  federal  judge  who  upheld  the  con- 
stitutionality of  the  sedition  laws.  Some  more  recent  decisions 
upon  a  kindred  question,  if  they  evince  less  display  of  passion, 
yet  show  an  equally  deficient  intellectual  vision  in  the  uphold- 
ing of  similar  laws.  All  this  comes  from  the  fact  that  we 
erroneously  ascribe  to  a  "moral"  cause  that  emotional  aver- 
sion whose  remote  source  is  usually  unknown  to  us,  but  whose 
immediate  reason  for  being  is  laid  deeply  hidden  in  our  subjec- 
tive (emotional)  states. 

And  here  again  I  am  compelled  to  express  regret  at  my 
inability  in  a  masterful  single  terse  sentence  to  present  an  in- 
stantaneous and  complete  picture  of  all  the  related  co-ordina- 

25 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

tions,  as  I  see  them.  Yet  such  is  the  limitation  of  human 
thought  and  its  expression  that  it  cannot  be  done.  My  regret 
in  the  matter  lies  in  this:  To  state  some  of  my  conclusions 
about  emotional  predispositions,  before  having  argued  out  the 
psychology  of  modesty  and  obscenity,  may  intensify  the  very 
emotional  aversion  which  I  seek  to  obviate.  And  to  elaborate 
the  psychology  first  and  at  this  stage  of  the  discussion,  is  likely 
to  secure  me  unmerited  condemnation  for  its  immateriality  and 
impertinence.  So,  then,  if  I  am  to  be  condemned  by  emotional 
processes,  my  case  is  hopeless.  If  I  cannot  secure  a  patient 
attention  to  the  very  end  of  my  presentation,  then  my  very 
effort  to  attack  the  adverse  emotional  predisposition  may  inten- 
sify it,  and  it  is  sure  to  do  so  if  I  have  overestimated  the 
reader's  healthy-mindedness  and  his  capacity  for  subjecting 
his  so-called  "moral"  emotions  to  a  severe  critical  introspec- 
tion. 

That  there  is  an  adverse  predisposition  concerning  my  con- 
tentions seems  unavoidably  and  unmistakably  certain.  The  re- 
lation of  the  subject-matter  to  our  emotional  life  makes  it 
quite  probable  that  there  exists  in  most  minds  an  intense  "will 
to  believe" — a  passionate  hope — that  I  am  wrong.  If  our  hu- 
man natures  have  that  uniformity  which  is  usually  ascribed 
to  them,  it  is  highly  probable  that  in  such  a  case  as  this  a  ju- 
dicial conservatism,  otherwise  commendable,  may  evolve  into  a 
one-sided  zealous  quest  for  means  to  uphold  the  laws  in  ques- 
tion, rather  than  a  scientist's  dispassionate  search  for  truth,  and 
in  proportion  as  this  zeal  is  great  the  capacity  to  weigh  the  rela- 
tive merit  of  arguments  will  be  impaired. 

Of  course  this  argument  is  prepared  with  the  thought  that 
sometime,  somewhere,  before  some  judicial  tribunal,  it  will  be 
a  subject  for  examination.  To  the  end,  therefore,  that  there 
will  be  a  minimum  of  unconscious  emotional  bias  to  cloud  the 
vision,  I  must  devote  myself  to  efforts  at  weakening  that  ad- 
verse mental  predisposition,  which  is  sure  to  exist  in  most 
minds.  In  so  far  as  the  approval  of  "obscenity"  laws  is  a  mat- 
ter of  emotions,  the  situation  is  very  difficult  to  meet  adequately. 
Feelings  are  seldom  successfully  displaced  by  calm  logical  proc- 
esses. However,  the  most  efficient  means  must  still  be  an  an- 
alysis of  our  "moral"  emotions,  to  show  the  impropriety  of  mak- 
ing them  the  basis  of  ethical  judgment,  and  to  make  a  rational 
attack  upon  the  expediency  of  maintaining  the  laws  in  ques- 
tion, and  this  will  now  be  proceeded  with.  When  I  have  done 

26 


ON    THE    ADVERSE    EMOTIONAL    PREDISPOSITION. 

what  I  am  able  to  do  to  weaken  the  potency  of  that  "moral" 
sentimentalizing  which  creates  the  mental  attitude  that  will 
more  diligently  and  energetically  concern  itself  with  verbalisms 
which  lend  only  a  seeming  support  to  the  feeling-conviction, 
than  with  discovering  the  logical  necessities  of  constitutional 
right,  then  I  will  proceed  with  the  more  direct  argument  of 
the  constitutional  merits  of  the  case. 

When  later  on  we  come  to  study  the  psychology  of  modesty, 
we  will  find  explanations  for  this  very  general  acquiescence  by 
the  members  of  the  bar  and  the  laity.  It  will,  then,  be  found 
that  the  strong  emotional  approval  of  these  laws  by  the  general 
public,  ignorant  of  all  scientific  knowledge  of  psychology,  and 
especially  of  sexual  psychology,  has  been  due  to  the  funda- 
mental and  all  but  universal  error  by  which  we  objectivize  our 
emotional  appraisment  of  moral  values.  Thus  the  masses  think 
they  know  because  they  feel  and  are  firmly  convinced  in  pro- 
portion as  they  are  strongly  agitated. 

The  judgment  of  the  righteousness  of  these  laws,  thus 
founded  upon  an  error  of  ignorance,  and  re-inforced  by  emo- 
tions which  often  owe  their  intensity  to  diseased  nerves,  as- 
sociated in  the  same  person  with  a  nasty-mindedness,  char- 
acteristics of  prurient  prudes,  has,  by  a  process  of  suggestive 
contagion,  become  obsessive,  even  with  more  intelligent  and 
healthy-minded  persons.  This  process  is  easily  understood  by 
those  who  know  the  psychology  of  modesty.  The  few  intelli- 
gent ones  know  that  the  emotional  state  underlying  modesty 
and  shame  arises  simply  from  a  fear-induced  application  to  our- 
selves of  judgments  primarily  passed  upon  others.  Upon  this 
practically  all  psychologists  are  agreed,  and  it  is  this  emotional 
aversion  and  fear,  with  the  blurred  vision  coming  from  psy- 
chologic ignorance,  which  has  produced  such  tremendous  suc- 
cess for  the  vehemence  of  our  moralists-from-diseased-nerves. 

The  same  emotional  and  psychologic  factors  which  make  it 
all  but  impossible  for  a  jury  to  doubt  the  obscenity  of  a  book 
alleged  to  be  so,  will  make  it  nearly  as  difficult  to  secure  an 
open-minded  judge  upon  the  same  question  or  that  of  the  un- 
constitutionally of  these  laws.  We  have  an  abundance  of  emo- 
tional associations  with  unpopular  words  and  ideas  and  we  have 
ethical  sentimentalizing  without  limit,  but  these  cannot  furnish 
us  with  any  objective  facts,  or  standards  for  a  rational  judg- 
ment. What  is  the  result  of  a  prosecution  for  obscenity  be- 
fore a  jury  thus  totally  lacking  in  every  element  for  deter- 

27 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

mining  the  issue  of  obscenity  with  even  moderate  precision? 
The  pretentious  agents  of  vice-societies,  the  prosecuting  attor- 
ney and  the  judge,  in  impassioned  tones  vent  their  emotional 
disapproval  in  vigorous  epithetic  argument  against  the  offend- 
ing book.  In  the  nature  of  things,  they  cannot  furnish  the  jury 
with  anything  else.  If  they  could,  the  question  of  obscenity 
would  be  a  question  of  law  determinable  by  the  court  according 
to  mathematically  accurate  standards  and  not  a  question  of 
fact  for  the  jury,  to  be  determined  according  to  whim,  caprice, 
and  moral  sentimentalizing.  Even  when  courts  have  treated  it 
as  a  matter  of  law,  their  decisions  have  still  been  only  decisions 
reached  by  the  same  uncertain  and  personal  standards.  In  these 
matters  it  is  true  of  all  of  us  that  we  know  only  because  we  feel, 
and  are  firmly  convinced  because  strongly  agitated. 

The  jury,  of  course,  wish  to  be  thought  respectable,  and  a 
similar  feeling  will  more  or  less  unconsciously  influence  judges 
who  have  not  been  warned  against  this  dangerous  tendency.  It 
may  be  that  the  book  offends  their  own  emotional  sense  of  pro- 
priety. The  changes  are  rung  on  the  necessity  for  protecting 
the  home,  the  women,  the  family  and  the  children,  until  the  ava- 
lanche of  righteous  vituperation  creates  such  a  mist  of  emo- 
tional disapproval  that  the  juror  forgets  or  loses  what  little 
capacity  he  may  have  had  for  looking  behind  the  question-beg- 
ging epithets.  In  the  face  of  this  condition  the  defense  is  help- 
less. It  also  is  unable  to  furnish  a  scientifically  exact  yard- 
stick, such  as  enables  the  juror  in  other  cases  to  check  his  emo- 
tional predispositions.  In  the  absence  of  a  clear  and  over-mas- 
tering vision  to  the  contrary,  every  juror's  vanity  of  respecta- 
bility, unavoidably  and  unconsciously  compels  him  unthinkingly 
to  condemn  everything  which  is  vigorously  denounced  as  "im- 
pure," by  anyone  connected  with  the  prosecution  or  by  popular 
ignorance,  prejudice,  superstitition,  or  passion.  In  the  face  of 
a  question-begging  epithetic  argument,  made  in  such  a  case  and 
under  such  circumstances  of  ignorance  and  want  of  experience, 
no  juror  is  able  to  reason  upon  the  question  at  issue,  which,  ac- 
cording to  the  usual  judicial  legislation  is :  Does  this  particular 
book  really  tend  to  deprave  and  how,  why,  and  by  what  code  of 
morality  is  depravity  to  be  determined?  If  compelled  to  answer 
these  questions  without  promptings  from  the  court  or  prosecu- 
tion, the  juror  must  confess  his  inability  to  state  how  and  why. 
The  result  is  that  just  as  in  the  witchcraft  prosecutions,  so  here, 
in  practically  every  case,  to  be  accused  is  equivalent  to  a  con- 

28 


ON   THE    ADVERSE   EMOTIONAL   PREDISPOSITION. 

viction,  yet  not  according  to  the  letter  of  any  statute,  but  ac- 
cording to  the  whim,  caprice,  prejudice  or  superstition  of 
those  who  shape  the  emotions  of  a  jury,  wholly  reasonless,  as  to 
this  particular  subject.  The  professional  vice-hunters  can  and 
do  boast  that  practically  they  never  fail  to  convict.  They 
ascribe  this  to  the  inerrancy  of  their  judgments,  and  point  to- 
the  uniformity  of  convictions  as  an  evidence  that  they  exercise 
a  wise  discretion  in  the  enforcement  of  a  law  which  they  admit 
is  uncertain  und  therefore  permits  of  abuses.  In  fact,  this  result 
is  a  product  of  ignorance  and  prejudice  and  is  to  be  explained 
by  the  uncertainty  of  the  statute  and  the  fact  that  modesty  is 
but  fear  of  the  judgment  of  others  (the  respectable  prose- 
cutors). When  the  verdict  of  the  jury  reaches  an  appellate 
tribunal,  the  uncertainty  of  the  law  makes  impossible  a  reversal 
on  the  question  of  obscenity.  There  being  no  exact  standard, 
no  thermometer  of  obscenity,  by  which  its  relative  degrees  can 
be  measured,  and  the  precise  freezing  point  of  modesty  deter- 
mined, the  appellate  court  in  its  helplessness  practically  never 
can  reverse  the  judgment,  because,  their  own  emotional  proprie- 
ties being  in  the  least  offended,  the  conviction  of  obscenity 
never  seems  to  be  without  some  "evidence"  to  support  it. 

This  uniform  affirmance  of  every  verdict,  like  the  original 
uniformity  of  conviction,  is  made  unavoidable  by  the  psycholo- 
gic nature  of  modesty  and  the  uncertainty  of  the  statute  and 
not  in  either  case  by  the  letter  of  the  law.  And  so  it  may  be 
even  when  we  come  to  a  discussion  of  the  constitutional  ques- 
tions involved.  If  the  emotional  predisposition  of  the  judge  is 
but  properly  enlisted  on  the  side  of  the  "moralists,"  of  hysteria, 
we  may  expect  to  find  that  mere  figures  of  speech  will  be  mis- 
taken for  analogies,  question-begging  epithets  will  take  the 
place  of  fact  and  argument,  and  mere  empty  verbalisms,  born  of 
self-righteous  emotions,  will  have  the  probative  force  of  a 
mathematical  demonstration  to  the  mind  of  an  average  judge, 
who  has  not  been  warned  against  this  dangerous  source  of 
error.  Even  some  who  have  been  warned,  as  I  am  now  trying 
to  warn  them,  will  still  lack  that  high  intellectual  development 
which  alone  makes  possible  a  subordination  of  the  emotions  to 
the  cold-logic  processes. 

Because  men  are  ignorant  of  sexual  psychology,  they  lack 
insight  to  discover  the  valuelessness  of  the  "moral"  emotions 
of  others,  and  being  without  that  clarity  of  vision  which  could 
frame  a  satisfactory  defense  against  the  personal  application 

29 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

to  self  of  such  unreasoned  "moral  judgments"  by  others,  it 
usually  follows  that  they  have  not  the  intelligent  disposition  or 
courage  to  attack  these  laws.  Even  the  attorneys  employed  to 
defend  such  cases  have  quite  uniformily  found  their  intellectual 
acumen  paralyzed  in  the  conflict  with  their  own  emotional 
approval  of  these  laws.  In  the  half-conscious  fear  of  the 
like  unreasoned  and  more  intense  emotions  of  their  prudish 
neighbors,  who  perhaps  are  the  unconscious  victims  of  sexual 
hyperaestheticism,  these  attorneys  quite  unavoidably  apologize 
for  defending  such  a  client.  By  his  very  demeanor  the  de- 
fendant's attorney  insinuates  a  verdict  of  guilty  into  the  mind 
of  the  judge  and  juror.  The  same  intellect-benumbing  influence 
has  thus  far  made  it  impossible  for  any  attorney  employed  in 
over  5000  of  such  cases  to  even  discover  that  there  are  con- 
stitutional questions  which  it  was  his  duty  to  present  in  de- 
fense of  his  client.  Where  such  conditions  prevail,  no  lawyer 
is  doing  his  duty  if  he  does  not  open  a  discussion  of  the  con- 
stitutional problems  by  an  attack  upon  this  adverse  mental  pre- 
disposition— by  a  plea  for  open-mindedness. 

In  the  past  ten  years,  sexual  psychology  has  made  long 
initial  strides.  A  few  besides  the  specialist  are  beginning  to  see 
that,  like  witches,  obscenity  exists  only  in  the  minds  of  those 
who  believe  in  it.  Of  this  more  will  be  said  hereafter.  Know- 
ing this,  these  few  are  ceasing  to  fear  the  emotional  judgment 
of  salacious  ascetics,  because  they  are  now  accounted  for  by  a 
diseased  sex-sensitiveness  and  are  seen  not  to  be  entitled  to  any 
moral  valuation.  When  lawyers  are  so  clean-minded  as  to  be- 
lieve, and  be  firmly  and  scientifically  convinced,  as  later  on  we 
expect  to  convince  them,  that  "unto  the  pure  all  things  are 
pure,"  then,  and  not  till  then,  can  there  be  any  open-minded  and 
fearless  inquiry  into  the  constitutionality  of  these  laws. 

Only  in  such  confident  clean-mindedness  can  we  hope  for 
the  moral  courage  to  resist  the  suggestive  intimidation  of  pru- 
rient prudes,  and  replace  the  befogging  intensity  of  emotional 
aversion  to  my  contention  with  the  lucidity  of  scientific  evi- 
dence and  logical  argument.  When  the  completed  presenta- 
tion of  the  case  is  made  to  such  a  court,  our  present  laws  against 
obscenity  must  disappear,  perhaps  to  be  replaced  by  others 
which  will  be  more  intelligible  and  consonant  with  a  decent  and 
enlightened  conception  of  constitutional  liberty. 

Prof.   Wm.   James,   of   Harvard   University,1   wrote   this: 

'Varieties   of  Religious    Experiences,   p.   74. 

30 


ON   THE   ADVERSE    EMOTIONAL   PREDISPOSITION. 

""The  truth  is  that  in  the  metaphysical  and  religious  sphere, 
articulate  reasons  are  cogent  for  us  only  when  our  inarticulate 
feelings  of  reality  have  already  been  impressed  in  favor  of  the 
same  conclusion."  In  the  very  nature  of  our  being,  in  its 
present  state  of  evolution,  the  whole  matter  of  sex  is  so  in- 
separably involved  with  mystical  religious  and  other  emotions, 
that  in  all  discussion  of  sex  subjects,  even  more  so  than  in 
the  field  of  metaphysics  and  religion,  we  assume  to  "know  be- 
cause we  feel  and  are  firmly  convinced  because  strongly  agita- 
ted." Out  of  this  very  exceptional  condition  comes  the  fact  that, 
no  matter  how  highly  the  critical  faculty  of  his  mind  may  be 
developed  in  its  application  to  other  subjects,  when  it  comes  to 
matters  of  sexual  topics  scarcely  one  man  in  a  million  can 
reason  calmly;  for  his  "moral"  emotions  will  dethrone  his 
reason,  and  mere  verbalisms,  and  righteous  vituperation  will 
take  the  place  of  logical  facts  of  experience,  and  thus  articulate 
seemings  of  reason  will  be  cogent  enough  to  confirm  any  con- 
clusion which  the  inarticulate  "moral"  feelings  have  already 
predisposed  us  to  believe.  This  will  usually  be  so  not- 
withstanding these  feelings  are  based  upon  mere  unreasoned 
sympathetic  imitation  and  emotional  association,  imposed  by  the 
mere  thoughtless  reiteration  of  customs,  which  often  have  their 
source  and  derive  their  special  character  from  the  vehemence 
of  those  who  are  afflicted  with  psycho-sexual  abnormity,  (eroto- 
phobia)  often  claiming  religious  indorsement,  and  which  the 
rest  of  us,  without  rationally  well  defined  ethical  convictions, 
will  adopt,  though  ourselves  healthy-minded.  Upon  this  sub- 
ject we  shall  yet  have  much  to  say,  especially  when  later  in  its 
relation  to  "Due  Process  of  Law"  we  come  to  discuss  the  psy- 
chology of  modesty  more  in  detail. 

The  practical  problem  is  to  discover  how  we  are  to  insure 
in  ourselves  that  open-mindedness  to  the  realities  of  reasoning 
which  the  importance  of  the  situation  imposes,  and  the  peculiar 
psychologic  factors  of  the  problem  make  so  difficult?  Simply 
by  remembering  and  submitting  ourselves  to  the  control  of 
a  very  few  maxims  of  ethical  science  as  contra-distinguished 
from  "ethical"  sentimentalism.  Wordsworth  Donisthorpe, 
M.P.,  puts  it  thus:  "No  man  has  ever  yet  succeeded  in  defin- 
ing virtue  a  priori."2  To  bear  that  in  mind  and  always  act 
upon  it  would  all  but  destroy  moral  sentimentalism.  Dr. 
Edward  Westermarck,  a  very  distinguished  Swedish  scholar, 
implies  a  similar  truth  when  he  is  writing  of  "the  error  we 

*A  Plea  for  Liberty,  p.  73-74. 

31 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

commit  by  attributing  objectivity  to  our  moral  estimates,"  the 
folly  of  which  he  points  out  in  the  following  words:  "The 
quantity  of  moral  estimate  is  determined  by  the  intensity  of  the 
emotions  which  their  object  tends  to  evoke  under  exactly  simi- 
lar circumstances."3  Prof.  Munsterburg,  of  Harvard,  ex- 
presses it  thus:  "No  subjective  feeling  of  certainty  can  be  an 
objective  criterion  for  the  desired  truth."4  More  will  be  said 
upon  this  subject  when  we  come  to  study  the  uncertainty  of 
the  "moral"  test  of  "obscenity." 

If,  then,  the  reader  desires  to  avoid  moral  sentimentalizing 
in  favor  of  the  rational  ethics,  and  further  desires  to  approach 
the  constitutional  questions  herein  involved  with  that  open- 
mindedness  which  can  come  only  as  an  accompaniment  to  sub- 
jugated emotions,  we  must  first  of  all  resolve  to  be  guided  only 
by  objective  criteria  for  the  desired  truth.  Having  resolved  to 
be  thus  guided,  let  us  make  a  little  preliminary  inquiry  as  to 
what  may  be  and  has  been  suppressed  under  these  laws,  and  de- 
termine, by  such  tests  as  we  have  now  agreed  to  use,  whether 
any  real  question  of  morality  is  involved.  This  discussion, 
and  more  of  a  kindred  nature  which  is  to  follow,  has  for  its 
objects:  First,  to  increase  the  intellectual  hospitality  for  the 
constitutional  argument  to  follow;  second,  to  exhibit  some  of 
the  general  considerations  upon  which  our  constitutional 
guarantee  of  freedom  of  the  press  was  adopted,  and  thus  fur- 
nish us  helpful  clues  to  the  interpretation  of  that  clause  of  the 
Constitution.  To  this  end  will  be  exhibited  some  of  the  evils 
which  come  from  such  laws,  and  this  will  be  followed  by  a 
general  vindication  of  the  right  of  every  adult  citizen  to 
know  all  that  can  be  known  even  about  the  subject  of  sex, 

•Origin  and  Development  of  Moral  Ideas,  T.  1,  p.  18. 
*Times  Magazine,  March,  1907,  p.  428. 


CHAPTER  III. 

NO  "OBSCENE"  LITERATURE  AT  COMMON  LAW 
Revised  from  The  Albany  Law  Journal,  May,  1907 

For  nearly  a  century  unintelligent  reformers  have  asserted, 
and  unindustrious  attorneys  have  repeated  the  statement,  and 
courts,  made  credulous  by  a  passionate  hope  that  it  might  be 
true,  have,  by  way  of  dictum,  affirmed  that  obscenity,  as  we 
now  understand  the  term,  in  the  light  of  our  modern  puritan- 
ism,  was  an  offense  at  common  law. 

The  truth  or  error  of  the  statement  has  several  important 
bearings.  When  we  come  to  a  discussion  of  the  meaning  of 
"freedom  of  the  press"  it  may  be  of  importance  to  know  just 
how  much  liberty  of  the  press  was  enjoyed  at  the  time  of  the 
adoption  of  our  Constitution. 

In  studying  the  present  outrageous  suppression  of  medical 
and  controversial  literature  under  the  pretense  of  suppressing 
"obscenity,"  I  am  reminded  of  this  cynical  statement  of  Ser- 
geant Hill:  "When  judges  are  about  to  do  an  unjust  act,  they 
seek  for  a  precedent  in  order  to  justify  their  conduct  by  the 
faults  of  others."  But  there  is  another  reason  for  destroying 
the  professional  illusion  about  obscenity  at  the  common  law,  be- 
cause by  destroying  the  veneration,  often  superstitious,  which 
lawyers  and  courts  give  to  supposed  precedent,  we  may  also 
increase  their  intellectual  hospitality  for  the  constitutional  argu- 
ment which  follows : 

Going  back  to  the  sixteenth  century,  we  find  no  such  gen- 
eral prudish  sentimentalizing  as  is  now  current  over  the  "ob- 
scene" of  the  nude  human,  nor  over  a  robust  frankness  in  the 
discussion  of  sex-problems.  Of  course,  even  before  this,  we 
find  ascetics  of  unbalanced  mind,  who  declaimed  against  all 
that  stimulated  their  unhealthy  sex-sensibilities,  but  no  law  as 
yet  had  made  their  diseased  condition  the  standard  of  virtue. 
Not  being  able  to  suppress  the  more  healthy  naturalness  of 
others,  they  usually  fled  to  some  mountain  or  desert  retreat,  to 

33 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

escape  the  temptations  which  endangered  their  "spiritual"  wel- 
fare. 

Among  those  who  did  not  thus  flee,  we  find  Christian  sects 
who  esteemed  it  a  special  virtue  to  parade  the  highways,  and 
more  privately  worshiped,  in  Adamic  costume.  From  such 
habits  these  sects  have  come  to  be  known  as  "Adamites."  No 
law  was  invoked  to  suppress  their  "obscenity,"  though  they 
suffered  persecution  for  their  heresies.  The  obscene  in  nature 
not  having  received  legal  recognition,  of  course  an  "obscene 
libel"  was  then  unknown. 

In  March's  "Action  for  Slander  and  Arbitrement"1  pub- 
lished in  1648,  and  revised  in  1674,  it  is  said  concerning  libel- 
ous  letters :  "Yet  the  star  Chamber  of  the  King  did  take  knowl- 
edge of  such  cases  and  punish  them ;  the  reason  is  for  that  such 
quarrellous  letters  tend  to  a  breach  of  the  peace."  Numerous 
refinements  were  indulged  in  to  exclude  from  suppressive 
measures  what  did  not  directly  tend  to  violence.  Thus  it  was 
held  that  a  general  charge  of  criminality  was  not  slanderous, 
since  only  a  very  specific  accusation  would  tend  to  a  breach  of 
the  peace.  So  long  as  such  tendency  to  violence  was  the  test 
of  the  criminality  of  a  publication,  nothing  could  be  punished 
merely  because  it  was  generally  "obscene,"  though  a  specific 
charge  of  obscenity  against  a  living  person,  who  would  be 
tempted  to  resent  it,  might  be  indictable. 

Since  England  had  an  established  church,  naturally  any- 
thing (including  the  so-called  obscene  publications)  which  dis- 
credited the  official  religion  would  also  be  held  libelous.  We 
shall  presently  see  how,  from  the  suppression  of  "obscene  im- 
piety," has  erroneously  grown  the  notion  that  all  so-called  "ob- 
scene" literature  was  suppressed  at  common  law. 

The  oldest  case  of  conviction  for  obscenity,  found  in  the 
law  reports,  was  decided  in  1663.  The  printed  record,  handed 
down,  only  informs  us  that  on  "confession  of  information 
against  him  for  showing  himself  naked  in  a  balcony  and  throw- 
ing down  bottles  (piss  in)  vi  &  armis  among  the  people  in  Co- 
vent  Garden,"  he  was  fined  200  marks.2  It  seems  that  in  addi- 
tion to  actual  violence,  in  throwing  the  bottle,  Sedley  was  guilty 
of  blasphemy.  Stephens  tells  us  that  Sedley  "Stripped  him- 
self naked  and  with  eloquence  preached  blasphemy  to  the 
people."2* 

The  next  reported  decision  was  rendered  in  1708,  by  Lord 

ap.   139. 

*King  v.    Sedley,  Kebble,  620,   Siderfins   R.   168,   10  State  Trials  Ass.   98. 

2aCriminal  Law  of  England,  V.  2,  p.  70. 

34 


NO      OBSCENE      LITERATURE    AT    COMMON    LAW. 

Holt,  who,  more  than  other  judges,  stood  out  against  the  tyr- 
annies of  the  crown.  The  decision  uses  these  words:  "A 
crime  that  shakes  religion,  as  profaneness  on  the  stage,  etc.,  is 
indictable,  but  writing  an  obscene  book,  as  that  entitled  'The 
fifteen  plagues  of  a  maidenhead,'  is  not  indictable,  but  punish- 
able only  in  the  spiritual  courts."3 

The  next  reported  decision  is  of  the  date  of  1727.  This 
case  is  of  importance  to  us,  because  it  is  the  one  case  which  is 
relied  upon  to  show  that  the  circulation  of  "obscene"  literature 
was  a  crime  at  common  law,  and,  as  we  shall  see  later,  it  is 
erroneously  assumed  that  "obscenity"  then  meant  what  "ob- 
scenity" now  means,  according  to  puritan  standards. 

Information  against  the  defendant  was  "for  that  he  exist  ens 
homo  iniquus  et  celeratus  ac  nequiter  machinans  et  intendens 
bonos  mores  subdito^um  hujus  regni  corrumpere,  et  eos  ad  nc- 
quitiam  inducere,  quendam  turpem  iniquum  et  obscaenum  libel- 
lum  intitulat  (Venus  in  the  cloister,  or  the  nun  in  her  smock) 
impio  et  nequiter  impresset  et  publicavit  ac  imprimit  et  publican 
causavit  (setting  out  the  several  lewd  passages)  in  malum  ex- 
emplum"  etc. 

The  defendant  was  found  guilty,  and  a  motion  made  in  ar- 
rest of  judgment.  For  the  motion  Mr.  Marsh  argued:  "The 
defendant  may  be  punishable  for  this  in  the  spiritual  court  as 
an  offense  contra  bonos  mores,  yet  it  cannot  be  libel  for  which 
he  is  punishable  in  the  temporal  courts.  In  the  case  de  libellis 
famosis  my  Lord  Coke  says  that  it  must  be  against  the  public, 
or  some  private  person,  to  be  a  libel ;  and  I  don't  remember 
ever  to  have  heard  this  opinion  contradicted.  Whatever  tends 
to  corrupt  the  morals  of  the  people,  ought  to  be  censored  in 
the  spiritual  court,  to  which,  properly,  all  such  causes  belong. 
I  don't  find  any  case  wherein  they  were  prohibited  in  such  a 
cause;  in  the  reign  of  King  Charles  the  Second  there  was  a 
filthy  run  of  obscene  writings,  for  which  we  meet  with  no 
prosecution  in  the  temporal  courts." 

The  Attorney-General  admitted  that  there  was  no  precedent 
for  this  conviction.  He  argued:  "Peace  includes  good  order 
and  government,  and  that  peace  may  be  broken  in  many  in- 
stances without  actual  force :  i,  if  it  be  an  act  against  the  con- 
stitution or  civil  order ;  2,  if  it  be  against  religion ;  3,  if  it  be 
against  morality." 

Under  the  third  head  the  Attorney-General  argued  as  fol- 
lows :  "As  to  Morality,  destroying  that  is  destroying  the  peace 
or  government,  for  government  is  no  more  than  public  order, 

•Qeen  v.  Read.   11  Modern  Reports,  case  No.  205. 

35 


OBSCENE  LITERATURE    AND    CONSTITUTIONAL    LAW. 

which  is  morality.    My  Lord  Chief  Justice  Hale  used  to  say 
Christianity  is  a  part  of  the  law,  and  why  not  morality,  too  ? 

"I  do  not  insist  that  every  immoral  act  is  indictable — but 
if  it  is  destructive  of  morality  in  general,  if  it  does  or  may  ef- 
fect the  king's  subjects,  it  then  is  an  offense  of  a  public  nature. 
And  upon  this  distinction  it  is  that  particular  acts  of  fornica- 
tion are  not  punishable  in  the  temporal  courts  and  bawdy 
houses  are.  In  Sir  Charles  Sedley's  case  it  was  said,  that  this 
court  is  the  custos  morum  of  the  king's  subjects,  and  upon  this 
foundation  there  have  been  many  prosecutions  against  the 
players  for  obscene  plays,  though  they  have  had  interest 
enough  to  have  the  proceedings  stayed  before  judgment." 

The  chief  justice  said  he  would  convict  were  it  not  for  the 
decision  in  Queen  v.  Read.  "If  it  tends  to  disturb  the  civil  or- 
der of  society  I  think  it  is  a  temporal  offense."  Justice  For- 
tesque  said :  "I  own  it  is  a  great  offense,  but  I  know  of  no  law 
by  which  we  can  punish  it.  Common  law  is  common  usage, 
and  where  there  is  no  law  there  can  be  no  transgression.  At 
the  common  law  drunkenness,  or  cursing  and  swearing,  were 
not  punishable.;  and  yet  I  do  not  find  the  spiritual  courts  took 
notice  of  it.  This  is  but  a  general  solicitation  of  chastity  and 
not  indictable.  Lady  Purbeck's  case  was  for  procuring  men 
and  women  to  meet  at  her  house,  and  held  not  indictable  un- 
less there  had  been  particular  facts  to  make  it  a  bawdy  house. 
To  make  it  indictable  there  should  be  a  breach  of  the  peace 
or  something  tending  to  it,  of  which  there  is  nothing  in  this 
case.  Libel  is  a  technical  word  at  common  law,  and  I  must 
own  the  case  of  the  Queen  v.  Read  sticks  with  me,  for  there 
was  a  rule  to  arrest  the  judgment  nisi.  And  in  Sir  Charles 
Sedley's  case  there  was  a  force  in  throwing  out  bottles  upon 
the  people's  heads." 

After  the  second  continuance,  Chief  Justice  Fortesque  hav- 
ing in  the  meantime  retired  from  the  bench,  the  reporter  adds : 

"In  two  or  three  days  they  gave  it  as  a  unanimous  opin- 
ion that  this  was  a  temporal  offense.  .  .  .  They  said  if 
Read's  case  was  to  be  adjudged  they  should  rule  it  otherwise." 
No  reasoning  is  given  or  precedent  cited.4 

In  the  earlier  report  of  this  same  case  we  find  a  different 
and  better  statement  of  the  reasons  for  the  decision.  It  is  in 
these  words: 

"After  solemn  deliberation,  the  court  held  it  to  be  an  of- 
fense properly  within  its  jurisdiction ;  for  they  said  that  reli- 

4Rex  v     Curl.   2   Strange  Rep.   789. 

36 


NO      OBSCENE      LITERATURE    AT    COMMON    LAW. 

gion  was  part  of  the  common  law  ;  and  therefore  whatever  is  an 
offense  against  that  is  evidently  an  offense  against  the  common 
law.  Now  morality  is  the  fundamental  part  of  religion,  and 
therefore  whatever  strikes  against  that,  must,  for  the  same 
reason,  be  an  offense  against  the  common  law.  The  case  of 
King  and  Taylor,  i  Ventris,  293,  is  to  this  very  point."5 

The  case  of  King  and  Taylor,  cited  by  the  court,  was  a  case 
of  obscene  blasphemy  for  calling  Jesus  Christ  a  bastard,  and 
a  whore-master,  and  declaring  all  religion  a  cheat.  It  is  evi- 
dent, therefore,  morality  is  used  only  in  the  sense  of  religious 
morality,  especially  since  no  scientific  ethics  had  yet  come 
into  existence. 

It  is  evident  from  the  authority  cited,  and  from  the  judicial 
language,  "morality  is  the  fundamental  part  of  religion,"  and 
from  the  title  of  the  book,  "Venus  in  the  cloister  or  the  Nun  in 
her  smock,"  that  the  court  had  no  occasion  or  thought  to  penal- 
ize obscenity  in  literature  as  obscenity,  and  when  it  did  not 
discredit  the  established  religion  or  its  servants,  nor  was  of  a 
seditious  nature,  nor  concerning  an  individual  so  as  to  provoke 
a  breach  of  the  peace. 

Subsequent  authorities  show  that  the  foregoing  analysis  is 
correct,  since  no  other  interpretation  of  King  v.  Curl  can  be 
made  to  harmonize  with  subsequent  judicial  action. 

The  next  reported  case  was  decided  in  1733.  This  decision 
clearly  shows  a  healthy  mindedness  which  now  is  scarce  among 
us,  and  confirms  the  conclusion  that  Curl's  case  was  decided 
on  the  impiety  of  the  offending  book,  and  not  because  of  its 
obscenity  as  such.  The  report  in  the  Gallard  case  reads  as 
follows : 

"Indictment  contra  bona  mores,  for  running  in  the  common 
way,  naked  down  to  the  waist,  the  defendant  being  a  woman. 
S.  moved  to  quash,  because  the  fact  is  not  indictable.  F.  contra : 
Indictment  will  lie  contra  bonas  mores  as  against  Curl  for  pub- 
lishing an  obscene  book,  i  Sid.  168,  Sir  Chas.  Sedley's  (Sed- 
ley's) case,  i  Keb.  620.  Quia  immodests  and  irreverentas,  be- 
haved himself  in  church.  Another  indictment  was  for  printing 
Rochester's  poems:  Sed.  per  Curl.  The  indictment  must  be 
quashed,  for  nothing  appears  immodest  or  unlawful."6 

The  next  case  of  "obscene  and  impious  libel"  was  against 
the  notorious  and  stormy  John  Wilkes  in  1768.  He  fled  the 
country  and  was  outlawed  without  contest,  and  in  the  subse- 

"King  v.    Curl,    Barnardiston's    Report   29    (A.    D.    1744). 
'King  v.  Gallard,  W.  Kelynge,  p.  163. 

37 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

quent  proceedings  only  technical  questions  of  procedure  were 
considered.  It  seems  that  several  of  his  publications  gave 
offense,  though  the  name  of  but  one  is  furnished  us,  "An  Essay 
on  Woman."  This  is  a  bawdy  poem,  in  which  the  name  of 
the  deity  is  impiously  interwoven  with  its  description  of  las- 
civious joys.  The  pamphlet  closed  with  another  bawdy  en- 
titled "The  Maid's  Prayer,"  and  addressed  to  "The  propitious 
God  of  Love." 

The  report  informs  us  that  "Mr.  Wilke's  counsel  and  agent 
making  no  objection  thereto — declining  to  enter  into  his  de- 
fense, verdicts  were  found  against  him,"  and  he  was  outlawed. 
Later  he  came  into  court,  and,  on  technical  grounds,  moved  to 
vacate  the  judgment,  and  "with  a  written  speech  to  justify  the 
crimes."  The  outlawry  was  reversed  upon  technical  defects  in 
the  papers,  but  the  conviction  was  undisturbed,  only  technical 
questions  of  procedure  being  considered  by  the  King's  bench. 
In  the  record  of  Wilke's  sentence  only  these  few  words  en- 
lighten us  as  to  the  reason  for  the  conviction:  "Being  con- 
victed of  certain  trespasses,  contempts  and  grand  misde- 
meanors, in  printing  and  publishing  an  obscene  and  impious 
libel,  entitled  'An  Essay  on  Woman'  and  other  impious  libels, 
etc."7 

Especially  in  view  of  Wilke's  turbulent  career  and  the 
stormy  times  which  surrounded  this  trial,  the  judgment  entered 
by  default  can  not  properly  be  said  to  be  of  much  weight  as 
an  authority.  Yet  it  was  designated  an  "impious  libel,"  as  well 
as  obscene,  ^nd  therefore  is  in  harmony  with  our  theory  that  it 
required  something  more  than  mere  obscenity  to  make  a  pub- 
lication criminal  at  common  law. 

These  are  the  only  decisions  on  obscenity  prior  to  the  sep- 
aration of  the  American  colonies,  and  therefore  the  only  ones 
which  became  a  part  of  the  common  law  of  America.  Fur- 
thermore they  demonstrate  that  "obscenity,"  merely  as  such, 
was  not  a  criminal  offense.  To  make  it  punishable  it  must  be 
of  that  personal  and  specific  character  (against  a  living  per- 
son) such  as  tended  to  disturb  the  peace,  or  else  it  must  be 
interwoven  with  impiety  such  as  tended  to  discredit  the  estab- 
lished religion  or  government. 

To  make  it  still  more  clear  that  the  English  common  law, 
before  the  Revolution,  never  punished  "obscene  libels,"  as 
such,  that  is,  where  unconnected  with  blasphemy  or  seditious 
tendencies,  we  may  profitably  review  a  few  of  the  English 

TRex  v.   John   Wilkes,   4   Burrows,   2527-2575. 

38 


NO  "OBSCENE"  LITERATURE  AT  COMMON  LAW. 

authorities  immediately  following  the  American  Revolution. 
The  first  of  such  cases,  King  v.  Tophan,  decided  January, 
1791,  was  a  case  of  libel  on  the  memory  of  Earl  Cowper, 
which  had  been  published  in  a  newspaper.  The  indictment 
charged  that  defendant  had  accused  the  Earl  of  having  "led 
a  wicked  and  profligate  course  of  life,  and  had  addicted  him- 
self to  the  practice  and  use  of  the  most  criminal  and  unmanly 
vices  and  debaucheries  on,"  etc.,  "at,"  etc.,  "to  the  evil  exam- 
ple," etc.,  "and  against  the  peace." 

Now,  to  publish  accounts  of  such  "unmanly  vices"  would 
almost  certainly  be  adjudged  "obscene  "  and  had  it  been  so 
considered  in  1791  the  defendant  would  in  this  case  have  been 
convicted.  Lord  Kenyon,  in  his  opinion,  quoted  with  approval 
I  Hawkins  Pleas  of  the  Crown  as  follows :  "The  chief  cause 
for  which  the  law  so  severely  punishes  all  offenses  of  this 
nature  [libels]  is  the  direct  tendency  of  them  to  a  breach  of  the 
public  peace,  by  provoking  the  parties  injured,  and  their 
friends  and  families  to  acts  of  revenge."  (Citing  i  Haw.  P. 
.  C,  chap.  73,  sec.  3.)  The  court  continues:  "Now  to  say,  in 
general,  that  the  conduct  of  a  dead  person  can  at  no  time  be 
canvassed ;  to  hold  that  even  after  ages  are  passed,  the  conduct 
of  bad  men  cannot  be  contrasted  with  the  good,  would  be  to 
exclude  the  most  useful  part  of  history."  It  was  accordingly 
held  that  the  indictment  stated  no  offense,  or,  in  other  words, 
to  publish  of  a  dead  person  accounts  of  "unmanly  vices  and 
debaucheries"  was  not  a  libel,  either  obscene  or  otherwise.8 

The  analysis  of  all  the  cases  on  obscenity  that  were  re- 
ported in  England  before  the-  American  Revolution,  as  well  as 
those  authorities  that  came  into  existence  immediately  after, 
are  conclusive  upon  the  point,  that  mere  "obscenity,"  as  such, 
was  not  a  common  law  crime  before  the  Revolution,  and, 
therefore,  never  became  a  common  law  crime  in  America,  al- 
though I  believe  some  courts,  on  a  superficial  and  uncritical 
view,  have  held  otherwise. 

That  in  the  Curl  case  it  was  the  irreligious  tendency  of 
the  book  which  made  it  criminal  and  not  the  bawdy  character 
thereof,  is  further  shown  by  the  law  writers  of  the  time. 

"The  mere  speculative  wantonness  of  a  licentious  imagina- 
tion, however  dangerous,  or  even  sanguinary,  in  its  object,  can 
in  no  case  amount  to  a  crime.  It  is  a  passion  inseparable  from 
the  essence  of  the  human  mind  to  delight  in  the  fiction  of  that 
the  actual  existence  of  which  would  please."9 

8Rex  v.  Topham,   4  Term  Rep.   129. 

•Lord  Auckland's  Principles  of  Penal  Law,  p.  84,  Lend.,  1771. 

39 


OBSCENE    LITERATURE    AND   CONSTITUTIONAL    LAW. 

With  knowledge  of,  and  in  spite  of  the  decision  in  King  v. 
Curl,  Hawkins,  in  his  "Pleas  of  the  Crown,"  thus  states  the 
common  law  on  the  subject:  "However,  it  seems  clear,  that 
no  writing  whatsoever  is  to  be  esteemed  a  libel,  unless  it  re- 
flects upon  some  particular  person ;  and  it  seems  that  a  writing 
full  of  obscene  ribaldry,  without  any  kind  of  reflection  upon 
anyone,  is  not  punishable,  as  I  have  heard  it  agreed  in  the 
court  of  King's  bench  "i() 

In  1809  we  come  to  the  first  English  case  wherein  our 
modern  puritanical  conception  of  modesty  finds  recognition. 
The  indictment  was  for  exposing  the  naked  person  by  bathing 
in  the  sight  of  homes.  A  verdict  of  guilty  was  followed  by 
an  appeal,  and  the  Court  of  King's  Bench  left  this  report  of 
its  conclusion:  "As  this  is  the  first  prosecution  of  this  sort 
in  modern  times,  they  [the  judges]  consented  to  his  being 
discharged."11 

As  a  further  confirmation  of  our  conclusion  that  the  com- 
mon law  of  England  and  America  knew  of  no  such  crime  as 
circulating  obscene  literature  except  when  it  was  of  the  particu- 
lar kind  which  directly  discredited  religion,  we  may  point  to 
the  law-book  writers  of  the  time,  who  uniformly  classified  it 
as  an  offense  against  God,  not  at  all  as  one  of  any  other  direct 
consequences  to  the  civil  order. 

With  the  creation  of  our  secular  commonwealths,  wherein 
a  union  of  church  and  state  is  forbidden,  our  constitutions 
have  repealed  all  common  law  offenses  against  God.  Writers 
such  as  Blackstone  make  no  mention  of  such  an  offense  ex- 
cept as  an  offense  against  God. 

This  little  review,  which  I  think  covers  all  the  reported 
cases  bearing  upon  the  common  law  against  obscenity,  shows 
conclusively  that  it  is  an  error  to  claim,  as  often  is  done,  that 
obscenity  in  our  modern  sense  was  an  offense  at  common  law. 

If  any  further  proof  was  necessary  to  show  the  relative 
indifference  to  so-called  obscenity  as  such,  we  may  find  it  in 
the  statement  of  Erskine  in  his  argument  in  the  case  of  Thomas 
Carnau.  He  said :  "I  should  really  have  been  glad  to  have  cited 
some  sentences  from  the  one  hundred  and  thirteenth  edition 
of  Poor  Robin's  Almanack,  published  under  the  revision  of  the 
Archbishop  of  Canterbury,  and  the  Bishop  of  London,  but  I 
am  prevented  from  doing  it  by  a  just  respect  for  the  house. 
Indeed,  I  know  of  no  house — but  a  brothel — that  could  suffer 

10Hawkins'  Pleas  of  the  Crown,  vol.  2,  p.   130,  Seventh  Ed.  1795. 
"Rex     v.   Cruden,   2  Campbell,  89. 

40 


NO      OBSCENE      LITERATURE    AT    COMMON    LAW. 

the  quotation.  The  worst  of  Rochester  is  ladies'  reading  when 
compared  with  them.  .  .  .  When  ignorance,  nonsense  and 
obscenity,  are  thus  fostered  under  the  protection  of  a  royal 
patent,  how  must  they  thrive  under  the  wide  spreading  foster- 
ing wings  of  an  act  of  Parliament."12 

If  still  more  proof  is  desired  we  have  it  in  the  literature 
of  pre-r evolutionary  times.  When,  in  1888,  Vizetelly,  a  cele- 
brated English  publisher,  was  arrested  for  "obscenity"  in  the 
vending  of  Zola's  novels,  he  published  a  unique  defense.  After 
exposing  and  denouncing  the  falsehood  published  to  arouse 
public  opinion,  he  re-published  "EXTRACTS  PRINCIPALLY  FROM 
ENGLISH  CLASSICS,  SHOWING  THAT  THE  LEGAL  SUPPRESSION 
OF  M.  ZOLA'S  NOVELS  WOULD  LOGICALLY  INVOLVE  THE  BOWD- 
LERIZING OF  SOME  OF  THE  GREATEST  WORKS  OF  ENGLISH 

LITERATURE/'  These  extracts  made  a  good  sized  volume,  and 
included  Shakespeare,  Beaumont  and  Fletcher,  Massinger, 
Defoe,  Dryden,  Swift,  Prior,  Sterne,  Fielding,  Smollet,  and 
scores  of  others.  I  am  informed  that  these  passages  were 
deemed  so  "obscene"  that  the  court  punished  him  for  contempt 
for  having  even  presented  them  in  argument.  And  yet,  not 
one  of  these  was  ever  the  subject  of  prosecution  at  common 
law. 

For  each  and  all  of  these  reasons,  I  assert  that  "obscenity" 
merely  as  such,  (that  is,  dissociated  from  blasphemy  and  sedi- 
tion or  a  tendency  to  provoke  a  breach  of  the  peace  in  private 
revenge)  was  not  punishable  at  common  law,  and  that  at  the 
adoption  of  our  constitutions  and  prior,  the  circulation  of  such 
matter  was  a  part  of  the  freedom  of  the  press,  although  such 
freedom  was  only  a  matter  of  permission. 

However,  under  the  judicial  amendments  of  our  constitu- 
tionally guaranteed  freedom  of  the  press  as  an  unabridgable 
right,  we  have  fewer  privileges  for  sexual  discussion  than  were 
enjoyed  before  the  American  constitutions  or  revolution.  So 
much  has  our  constitutional  right  been  judicially  annulled. 
The  question  is :  Shall  our  constitutional  freedom  be  restored  ? 

l2Erskine's  Speeches,  vol.   1,  pp.  51-52. 


CHAPTER  IV. 
THE   ETIOLOGY  and  DEVELOPMENT 

OF   OUR 

CENSORSHIP  of  SEX-LITERATURE. 

The  etiology  of  depotism  is  always  quite  the  same.  The 
absence  of  understanding,  or  appreciation,  of  liberty  on  the 
part  of  the  masses  and  the  natural  lust  for  power,  which  makes 
every  human  a  potential  tyrant;  makes  him  indifferent  to  all 
tyranny  which  does  not  directly  effect  him ;  and  makes  him  sub- 
missive to  even  that  tyranny  which  is  exercised  injuriously  over 
himself  if  only  in  his  turn  he  can  tyrannize  over  others — it  is 
these  conditions,  now  combined  with  the  prevalence  of  a 
prurient  prudery,  which  have  produced  the  present  result.  The 
initial  exercise  of  tyrannical  power  always  has  to  do  with  sub- 
jects as  to  which  there  is  great  public  indifference,  or  a  quite 
general  approval,  at  least  of  a  sentimental  sort.  The  populace 
thus  accustomed  to  the  exercise  of  tyrannous  authority,  doze 
on  with  the  delusion  of  liberty  secure,  while  the  lust  for  power 
induces  officials  to  extend  their  authoritarian  blight  from  one 
subject  to  another,  until  in  the  end  the  stupid  masses  awake  to 
find  that  they  possess  all  their  liberties  only  as  tenants  at  will 
of  masters  whom  they  thought  servants  of  their  own  creation. 
I  cannot  believe  these  "obscenity"  laws  would  ever  have  passed 
any  American  legislative  body,  had  it  been  previously  an- 
nounced that  the  result  would  be  such  as  it  now  is,  within  and 
beyond  the  domain  of  sex-discussion. 

Here  I  must  limit  myself  to  an  exhibition  of  the  forces 
behind  this  censorship  and  of  its  development  from  the  sup- 
pression of  "obscene  blasphemy"  to  "blasphemous  obscenity" : 
from  the  suppression  of  mere  pornographic  filth  to  the  nude 
in  legitimate  art ;  from  medical  prudery  to  the  suppression  of 
popular  medical  books,  thence  to  serious  and  more  pretentious 
sexual  science  and  finally  including  "purity  books"  and  perhaps 

42 


ETIOLOGY    AND   DEVELOPMENT    OF    OUR    CENSORSHIP. 

the  Bible.  The  extension  of  the  censorship  into  the  realm  of 
politics  and  economics  I  cannot  discuss,  though  it  has  been  as- 
tonishingly wide. 

When,  from  the  vantage  ground  of  an  age  of  true  enlighten- 
ment, future  generations  shall  look  back  on  our  vaunted  age 
of  (contemptible?)  civilization,  they  will  be  moved  by  mingled 
feelings  of  pity  and  scorn,  even  as  we  are  so  moved  when 
looking  back  upon  the  "Dark  Ages".  As  now  we  see  the  mon- 
strosities of  the  witch-craft  superstition,  so  some  future  gen- 
eration will  look  back  in  wonderment  at  our  present  sex- 
superstition.1  While  in  the  "dark  ages"  men  were  punished  for 
doubting  some  tenet  of  the  creed  of  dogmatic  theology,  we  in 
this  "age  of  civilization"  punish  men  for  expressing  doubt  as  to 
some  tenet  of  the  creed  of  our  dogmatic  sex-morals ;  where 
formerly  humanity  was  by  law  compelled  to  accept  inspired  ge- 
ology, we  of  to-day  are  by  law  compelled  to  accept  inspired 
sexology.  For  centuries  the  astrologers  made  it  a  crime  to  teach 
the  common  people  astronomy,  just  as  in  this  twentieth  century 
it  is  a  crime  to  teach  the  common  people  real  sexual  science. 
The  general  dissemination  of  information  about  geology  and 
astronomy  was  prohibited  because  they  discredited  the  fables  of 
Genesis  about  the  creation  of  the  earth ;  to-day  the  general 
dissemination  of  information  about  the  sexual  sciences  (physi- 
ology, anatomy,  psychology,  and  ethics)  is  prohibited  because 
these  sciences  discredit  the  fables  of  ascetic  priests  about  the 
reproductive  function  of  man.  Formerly  it  was  thought  ex- 
tremely dangerous  to  allow  common  people  to  read  the  Bible 
because  of  the  awful  consequences  of  erroneous  private  judg- 
ment, just  as  now  sexual  discussion  and  sciences  must  be 
withheld  on  account  of  the  same  stupid  fear. 

We  are  so  intoxicated  with  unenlightened  emotions  over 
the  word  "liberty"  that  we  have  not  the  capacity  to  find  out 
its  meaning,  nor  to  discover  that  we  have  less  liberty  of 
speech  and  press  to-day  than  existed  in  England  a  century 
ago.  There  would  be  grim  humor  in  most  of  what  I  am 
going  to  record,  if  only  we  could  relieve  ourselves  of  foolish 
apprehensions  based  upon  our  popular  superstititions  and  ego- 
mania, and  view  ourselves  and  our  fellows,  as  thesophists  say 
we  may  view  our  present  activities,  from  the  eminence  of 
some  future  incarnation. 

'See  "OBSCENITY  AND  WITCHCRAFT,  TWIN  SUPERSTITIONS,"  in 
Physical  Culture  for  June,  1907;  "WHAT  IS  CRIMINALLY  OBSCENE?" 
Albany  Law  Journal,  July,  1906. 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 
KNEELAND  BLASPHEMY  TRIAL. 

When  the  descendants  and  the  successors  of  the  puritan 
witch-hunters  came  to  framing  their  fundamental  law  for  the 
State  of  Massachusetts,  they  thought  it  necessary  to  God's 
vanity  that  his  existence  be  given  official  recognition  in  the 
Constitution.  This  seems  to  have  operated  as  a  limitation,  or 
the  creation  of  an  exception,  to  other  clauses  of  the  Consti- 
tution, such  as  the  guarantee  of  freedom  of  speech. 

But  in  the  blasphemy  trial  of  Abner  Kneeland,  which  oc- 
curred in  Massachusetts  in  1834,  the  charge  of  blasphemy  was 
reinforced  by  the  prosecutor  with  this  quotation  from  a  work 
sold  at  the  office  of  Kneeland's  paper,  The  Investigator :  " We 
have  now,  perhaps,  sufficiently  matured  the  subject,  so  as  to 
be  prepared  to  propose  and  answer  the  question,  'what  laws 
would  you  have  in  relation  to  matrimony?'  To  which  I 
answer — Marriage  is  a  civil  contract  between  the  parties  which 
stands  upon  the  same  basis  of  all  other  civil  contracts,  which 
are  binding  as  long  as  the  parties  mutually  agree,  and  no 
longer.  The  parties  who  make  the  contract,  can  dissolve  it  at 
pleasure,  or  by  mutual  consent.  But  if  the  parties  cannot 
agree  to  separate  by  mutual  consent,  then  it  is  necessary  to 
call  in  a  third  party,  one  or  more,  as  referee  or  arbitrators,  not 
to  bind  the  parties  together — for  in  relation  to  matrimony, 
where  the  ties  of  affection  do  not  bind  them,  this  is  impossible 
— but  to  say  on  what  terms  they  shall  separate,  not  only  in 
regard  to  the  property,  but  also  to  the  maintenance  and  the 
education  of  the  children,  if  there  be  any  ;*****  I  would  have 
no  one  therefore  marry  for  life,  in  the  first  instance  nor  for 
any  certain  period  of  time.*****But  be  not  alarmed,  the  above 
principles  are  not  intended  for  the  present  state  of  society  at 
all,  and  not  until  all  children  are  provided  for  by  the  public 
(who  are  not  sufficiently  provided  for  by  their  parents),  both 
as  regards  their  maintenance  and  education."  For  circulating 
this  "blasphemous"  statement  the  defendant  was  vigorously 
denounced  before  the  jury,  and  after  reading  the  foregoing 
extract  these  questions  were  asked  of  the  jurors  as  answering 
themselves :  "Who  will  say  that  courts  of  justice  ought  not  to 
enforce  the  law  against  disseminating  the  moral  and  political 
poison  of  Atheism,  and  blasphemy?  and  proclaim  their  disgust 
at  a  system  combining  blasphemy,  atheism,  infidelity,  adultery, 
lewdness,  removing  all  moral  and  religious  and  legal  checks 

44 


ETIOLOGY    AND   DEVELOPMENT    OF   OUR    CENSORSHIP. 

upon  human  depravity,  and  leading  to  a  community  of  property, 
and  striking  directly  at  the  foundation  of  civil  society?  Prose- 
cutions against  blasphemy  at  this  time,  in  this  country,  are  not 
merely  the  causes  in  which  God  and  Religion  only  are  con- 
cerned"2. A  verdict  of  guilty  was  rendered  and  affirmed  on 
appeal. 

Later  the  word  "blasphemy"  became  unpopular  and  lost  its 
sting  as  an  epithet  of  criminality,  and,  notwithstanding  the  law, 
those  who  desired  to  blaspheme  could  do  so  with  practical  im- 
punity. The  high-priests  of  fanaticism  therefore  felt  com- 
pelled to  secure  laws  which,  under  less  archaic  names,  would 
enable  them  more  successfully  to  punish  what  theretofore  had 
been  called  "blasphemy" ;  and  they  are  about  to  succeed.  I 
am  informed  that  in  1872  the  original  draft  of  the  "obscenity" 
statutes  included  "blasphemous"  literature  among  the  unmail- 
able  postal  matters.  In  1878  the  N.  Y.  Society  for  the  Sup- 
pression of  Vice,3  boasted  that  a  "class  of  publications  issued 
by  freelovers  and  free-thinkers  is  in  a  fair  way  of  being 
stamped  out."  Since  then  many  of  the  statutes  against 
"obscene"  literature  have  been  amended  by  the  addition  of 
several  other  epithets,  such  as  indecent,  filthy,  and  disgusting, 
which  are  even  more  outrageously  indefinable  than  the  original 
"obscene."  Under  the  vague  statutory  words  "indecent,  filthy, 
disgusting,"  several  attempts  have  been  made  to  secure  con- 
viction for  circulating  merely  anti-religious  literature.  Such 
cases  were  the  arrest  of  Bennett  for  circulating  "An  Open 
Letter  to  Jesus  Christ" ;  the  arrest  of  Moore,  in  Kentucky,  for 
circulating  irreligious  literature,  and  the  arrest  of  Vanni,  a 
news  dealer,  for  vending  foreign  anti-clerical  papers.  Up  to 
this  time,  the  courts  have  not  indulged  in  the  necessary  judicial 
legislation  to  make  the  indefinable  statutory  epithets  cover  cases 
of  mere  theologic  heresy.  However,  judging  by  the  progress 
being  made,  and  the  increasing  ease  with  which  postal  au- 
thorities and  courts,  by  usurped  power,  interpolate  into  such 
uncertain  statutes  their  own  ex  post  facto  criteria  of  unmail- 
ability  and  guilt,  the  time  is  not  far  off  when  the  just  stated 
hope  of  the  N.  Y.  "Society  for  the  Suppression  of  Vice"  will 
be  a  realized  fact.  Thus,  without  "blasphemy"  in  the  Statute, 
the  persecutors  of  unpopular  opinions  will  accomplish  all  the 
inequity  formerly  achieved  by  the  laws  against  blasphemy. 

FROM  "OBSCENE  BLASPHEMY"  TO  "BLASPHEMOUS  OBSCENITY." 
I  have  shown  that  at  Common  Law  "obscenity,"  merely  as 

2Argument  of  the  Attorney  of  the  Commonwealth  in  the  trials  of  Abner  Knee- 
land,  p.  89. 

8See  p.  7  of  its  Report  for  that  year. 

45 


OBSCENE    LITERATURE    AND   CONSTITUTIONAL    LAW. 

such,  was  not  an  offense.  However,  there  was  a  kind  of  blas- 
phemy which  was  distinguished  from  other  sorts  of  blasphemy 
by  the  adjective  "obscene."4  "Obscene  blasphemy,"  as  known 
at  Common  Law,  seems,  under  the  determining  influence  of 
puritanism,  to  have  evolved  into  the  notion  that  all  heresy  as 
to  sex-morals  and  ideals  was  in  itself  a  blasphemy.  With  the 
growth  of  religious  liberality,  and  the  consequent  odiousness 
of  prosecutions  for  "blasphemy",  there  came  a  change  of  name, 
and  a  modification  of  sentiment,  which  resulted  in  the  first 
penalization  of  all  "obscenity"  merely  as  such,  and,  as  in  all 
blasphemy  laws,  the  creation  of  psychologic  crimes,  by  making 
the  penalty  attach  without  proof  of  actual  injury,  or  the  im- 
minent danger  thereof  according  to  any  known  laws  of  our 
physical  universe.  Unfortunately,  these  statutes  never  furnish 
the  criteria  of  guilt,  but  leave  that  to  the  whim,  caprice  and 
"moral"  idiosyncracy  of  judges  and  jurors,  and  this  in  spite  of 
our  constitutional  guarantee  of  "due  process  of  law." 

The  earliest  "obscenity"  prosecutions  to  attract  widespread 
attention  were  for  the  sale  of  "Cupid's  Yokes."  This  pamphlet, 
although  not  written  with  an  eye  single  to  politeness  of  style, 
yet  manifestly  is  a  serious  and  bona  fide  attempt  to  discuss  the 
difficult  sociologic  problem  of  sex,  and  evidences  more  thought 
and  study  in  its  preparation  than  is  usual  in  such  productions. 
The  author  was  an  Infidel,  and  the  vendors  of  it  were  most 
often  persons  who,  having  seen  the  utility  of  encouraging 
heresy  in  matters  of  theology,  were  willing  also  to  encourage 
a  dissent  from  religious  sex-morals.  So  these  culprits  were 
apt  to  be  Infidels,  as  also  were  those  who  were  willing  to  de- 
fend the  right  of  men  to  advocate  even  disapproved  sex-heresy. 
The  doctrines  advocated  in  this  pamphlet  were  similar  to  those 
quoted  in  the  foregoing  comment  on  the  Kneeland  blasphemy 
case.  The  chief  of  our  moralists  for  revenue  called  it  "blas- 
phemous obscenity." 

To  the  unreflecting  crowd  the  difference  between  "obscene 
blasphemy"  and  "blasphemous  obscenity"  is  not  very  great,  and 
to  our  sex-worshiping  moral  sentimentalists  there  is  no  dif- 
ference at  all.  To  the  latter,  all  frank  discussion  of  sex  is 
blasphemy  because  it  unveils  their  sacred  idol,  and  all  other 
blasphemy  is  immoral  chiefly  because  it  tends  to  discredit  the 
divine  guarantee  of  their  a  priori  sex-morality.  Thoughtful 
persons  saw  in  all  this  a  new  departure.  Formerly  the  criterion 
of  guilt  was  theologic  heresy  while  now  there  was  to  be  an 

*Albany   Law  Journal,   May,    1907. 

46 


ETIOLOGY    AND   DEVELOPMENT    OF   OUR    CENSORSHIP. 

extension  of  the  censorship  into  purely  sociologic  realms  which 
once  had  been  recognized  as  secular  domains,  beyond  the 
province  of  Religio-State  control. 

ON  THE  MANUFACTURE  OF  PRECEDENTS. 

Before  proceeding  to  the  exposition  of  the  evolutionary 
process  and  achievements  of  our  censorship,  I  think  it  well  to 
indicate  how  designing  men  can  manufacture  judicial  prece- 
dents gradually  enlarging  a  dangerous  undefined  power.  Those 
who  practise  a  lucrative  morality,  by  regulating  the  intellectual 
food-supply  of  others,  are  much  more  far-seeing  than  the 
friends  of  freedom,  and  in  their  manufacture  of  precedents 
our  moralists  for  revenue  exercise  a  considerable  ingenuity. 
If  a  book  they  wish  to  suppress  is  published  by  an  influential 
firm,  they  may  think  it  unwise  to  attack  the  publisher,  but  go 
after  some  obscure  or  unpopular  and  impecunious  retailer  of 
the  book.  If  he  shows  fight  and  the  book  is  one  which  might 
find  many  friends  to  champion  it,  the  culprit  is  invited  to  plead 
guilty  and  pay  a  nominal  fine.  Usually  he  is  quite  willing  to 
assist  in  establishing  a  pernicious  precedent  if  only  it  saves  his 
purse.  By  citing  precedents  thus  manufactured,  others  are 
cowed  into  submission,  and  courts  are  finally  lead  to  adopt 
them  in  extension  of  the  censorship.  In  a  recent  case  an  em- 
ployee was  arrested  for  distributing  an  alleged  "obscene"  pam- 
phlet. A  nominal  fine  was  suggested  if  he  would  plead  guilty. 
Upon  refusing  to  accept  the  offer,  his  employer  was  threatened 
with  arrest.  Still  refusing,  the  court  held  the  pamphlet  no 
violation  of  the  law.  At  other  times,  when,  in  all  probability, 
indictment  and  conviction  cannot  be  had,  appeal  is  made  to  the 
Postal  Department  to  exercise  its  power,  made  arbitrary  by  un- 
certainty of  the  statute,  to  refuse  the  transmission  of  the 
offending  book,  and  all  advertisements  of  it.  If  the  courts  are 
resorted  to,  they  deny  relief  because  the  same  statutory  un- 
certainty makes  it  impossible  to  say  that  the  postal  authorities 
have  abused  their  discretion,  which  discretion,  however,  is  con- 
ferred only  by  implications  arising  from  the  same  uncertainty 
of  the  same  statute.  Thus  are  our  liberties  frittered  away  by 
piece-meal  construction.  Then,  too,  our  professional  purists 
often  are  very  wise  in  the  choice  of  jurisdiction  in  which  they 
seek  to  make  a  precedent.  They  soon  learn  that  some  judges 
will  construe  books  to  be  criminal  which  other  judges,  perhaps 


47 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

more  clean-minded,  would  probably  hold  to  be  no  violation  of 
this  uncertain  statute.  We  all  know  where  they  would  seek 
to  create  their  precedent.  Because  these  statutes  do  not  furnish 
the  criteria  of  guilt,  all  this  is  possible  and  easy.  The  public 
must  be  content  with  dogmatism  and  question-begging  epi- 
thets. No  one  dares  republish  the  "obscene"  matter,  even  for 
the  purpose  of  convincing  the  voting  public  that  the  law  which 
condemned  it  should  be  repealed. 


The  chief  force  behind  these  "obscenity"  laws  is  the  waning 
influence  of  the  ascetic  ideal.  Very  generally,  Christians  had 
accepted  the  views  of  Origen  and  St.  Hieronymos  that 
"Marriage  is  always  a  vice ;  all  we  can  do  is  to  excuse  and  to 
cleanse  it."  Quite  logically  it  followed  from  such  premises  that 
to  produce  the  most  virgins  and  Christian  soldiers  should 
come  to  be  estimated  as  the  least  offensive  life  for  those  who 
claimed  a  "sacramental  authority  to  live  unchaste."  Of  course, 
to  such  minds  the  artificial  sterilization  of  marriage  was  the 
greatest  possible  offense  and  akin  to  blasphemy,  in  that  it  was 
the  frustration  of  the  "divine  plan." 

As  the  ascetic  ideal  was  losing  its  influence  over  sane  minds 
its  apostles  most  naturally  resorted  to  the  usual  legalized 
violence  to  enforce  it  upon  the  increasing  number  inclined  to 
repudiate  it.  Sometimes  an  effort  was  made  to  stretch  the 
Common-law  crime  of  "obscene  blasphemy"  so  as  to  provide 
punishment  for  those  who  disseminated  information  as  to  the 
prevention  of  conception.  Later,  when  the  "obscenity"  statutes 
had  been  passed,  it  was  contended  that  such  information 
was  "obscene."  Courts  and  juries  did  not  always  lend  them- 
selves to  the  enforcement  of  this  view.  Then  our  moralists 
for  revenue  secured  statutes  which  specifically  penalized  such 
information. 

A  most  practical  book  for  physicians  and  intelligent  lay- 
men is  entitled,  "Sexual  Hygiene,  Compiled  from  Books, 
Articles,  and  Documents,  Many  not  Heretofore  Published,  by 
the  Editorial  Staff  of .'*  Both  sides  of  many  contro- 
verted questions  are  presented.  Among  other  things,  there 
is  a  short  chapter  discussing  methods  for  the  prevention  of 

*I  heard  of  this  suppression  quite  accidentally.  The  publishers  declined 
furnish  any  information  and  requested  that  I  do  not  mention  it.  This  attitude, 
which  is  very  general  among  publishers,  makes  it  almost  impossible  to  find  out 
what  our  censors  are  suppressing. 

48 


ETIOLOGY    AND   DEVELOPMENT    OF    OUR    CENSORSHIP. 


conception.  This  book  was  recently  suppressed  by  threat  of 
prosecution,  and  doubtless  because  it  was  "obscene,"  if  al- 
lowed to  get  into  the  hands  of  laymen,  as  well  as  because  of 
its  discussion  of  preventives.  So  it  has  come  to  this  that  it 
is  a  crime  to  assist  in  preventing  the  prolific  propagation  of 
the  unfit,  and,  so  far  as  the  law  can  promote  such  ends,  we 
have  compulsory  breeding,  breeding  enforced  by  statute.  This, 
too,  in  a  land  where  it  is  declared  that  the  maintainance  of 
liberty  is  the  end  of  government. 

FROM   BAWDRY   PICTURES  TO   NUDITY   IN   ART   AND  SEXUAL 
ANATOMY. 

In  the  beginning  it  seems  as  though  people  thought  that 
only  bawdry  portrayals  were  to  be  suppressed.  "Filthy"  was 
the  characterization  of  Congressman  Merriam  when  in  1873 
he  made  a  statement  in  favor  of  the  suppression  of  the  "ob- 
scene." Such  question-begging  epithets  of  course  preclude  a 
thoughtless  public  from  the  weighing  of  human  liberty  against 
moral  sentimentalism,  or  of  considering  the  evolution  of  prec- 
edents, or  even  asking  for  statutory  critera  of  guilt.  A  dull 
and  unconcerned  populace  did  not  see  that  the  precedents 
which  they  applauded  would  lead  to  the  suppression  of  all 
nudity  in  art,  and  ultimately  to  the  suppression  of  all  contra- 
diction of  the  theology  of  sex.  The  transition  was  swift  .from 
suppressing  what  disgusted  most  people  to  the  suppression  of 
that  which  could  offend  only  the  extreme  ascetic,  or  prude. 
Boston  banished  its  bronze  Bacchante.  A  copy  of  "The 
Triumph  of  Charles  V,"  by  Hans  Makart,  was  ordered  out 
of  the  window  of  a  New  York  candy-store.  A  Fifth  Avenue 
art  dealer  had  to  conceal  a  landscape  portraying  some  children 
discreetly  walking  away  from  the  beholders.  That  these 
pictures  had  the  saving  grace  of  high  art  did  not  protect  their 
owners,  and  these  owners,  not  caring  to  indulge  in  the  ex- 
pense of  defending  human  liberty,  succumbed  to  the  threat. 

Emboldened  by  similar  successes,  the  Art  Students  League 
catalogue  was  attacked  because  of  its  drawings  of  nude  men. 
Washington  postal  authorities  had  declared  it  mailable,  so  an 
arrest  was  made  under  State  laws.  The  defendant  was  in- 
duced to  plead  guilty  on  assurance  that  no  appreciable  penalty 
would  be  inflicted.  This  also  was  cheaper  than  to  defend 
human  rights,  and  thus  the  seemings  of  another  judicial  prec- 
edent were  established.  However,  this  doubtful  victory  and 
the  great  publicity  given  it  did  not  yet  give  courage  for  at- 

49 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

tacking  a  popular  magazine  which  soon  after  adorned  its  title 
page  with  the  posterior  view  of  nude  children.  The  result 
might  have  been  different  had  it  been  a  periodical  more  gen- 
erally disapproved,  or  which  had  previously  and  for  other 
reasons  excited  official  condemnation. 

From  art  to  literature  was  not  a  far  reach.  First  of  course 
the  censors  suppressed  the  purely  bawdry  literature,  as  for 
example,  "Fanny  Hill"  and  "Memoirs  of  a  Woman  of  Pleas- 
ure." Thence  the  extension  to  "The  Yoke"  and  "Three 
Weeks" ;  Zola,  Boccaccio  and  Rabelais  also  have  been  attacked 
with  varying  success,  and  even  lately  a  woman  was  arrested  in 
New  Jersey  for  sending  to  her  husband,  by  mail,  a  copy  of 
Burn's  "Merry  Muses."  In  New  York  a  woman,  having 
qarreled  with  her  husband,  had  him  arrested  for  having  mailed 
her  a  lascivious  letter.  Tolstoi's  "Kreutzer  Sonata"  was  sup- 
pressed by  Postmaster  General  Wanamaker.  Bills  have  al- 
ready been  introduced  to  penalize  advertisements  of  liquors 
and  cigarettes,  and  descriptions  of  drinking  and  smoking 
scenes.  Soon  we  will  have  a  literature  that  is  not  only  sexless 
but  also  drinkless  and  smokeless.  But  what  good  will  have 
come  to  humanity  when  all  this  is  achieved?  Will  sexual  and 
other  irregularities  really  cease  in  fact  because  they  cannot 
openly  exist  in  type?  Will  justice  be  more  certain  and  liberty 
more  secure? 

Dr.  R.  W.  Shufeldt,  Major  U.  S.  Army  (retired),  is 
internationally  one  of  the  best  known  among  American  Scien- 
tists. He  has  published  a  number  of  books  and  over  1,100 
essays  making  many  valuable  contributions  of  original  re: 
search  and  of  great  scientific  value.  One  of  his  latest  is  a 
handsome  volume,  which  in  the  cheapest  edition  sells  for 
$15.00,  and  is  entitled  "Studies  of  the  Human  Form." 

The  author  says :  "The  aim  in  writing  it  has  been  to  make 
a  contribution  to  the  subject  which  may  prove  to  be  of  use 
to  students  of  art ;  to  professional  artists  and  sculptors ;  to 
craftsman  requiring  a  knowledge  of  the  human  figure ;  to 
medical  men  of  all  classes  *  *  * ;  and  finally  to  quicken  the 
cause  for  the  good  of  the  national  and  individual  morals  and 
ethics  of  the  race,  to  the  death  of  all  prudery,  superstition, 
and  vice." 

This  last  was  the  unpardonable  sin,  to  those  of  whom  it 
may  be  said:  Unto  the  lewd  all  is  lewd.  Although  the  book 
had  received  the  highest  praise  from  many  scientists  and 


ETIOLOGY    AND   DEVELOPMENT    OF    OUR    CENSORSHIP. 

artists,  one  of  our  moralists  for  revenue,  armed  with  the 
authority  of  a  postal  inspector,  threatened  the  publishers  with 
immediate  arrest  unless  they  would  suppress  the  entire  edi- 
tion. They  promised,  but  at  the  same  time  began  preparing 
for  an  appeal  to  those  higher  up  in  the  Postal  Department. 
As  a  result,  the  inspector's  decision  was  reversed,  with  a 
string  on  the  reversal.  The  postal  authorities  prescribed 
limitations  as  to  the  manner  of  sale  and  persons  to  whom 
alone  the  sales  are  to  be  made.  None  of  these  limitations 
is  found  in,  nor  .derived  from,  the  Statutes,  but  the  officials 
decided  that,  so  long  as  the  departmental  legislation  is  com- 
plied with,  the  book  is  not  "obscene"  and  its  transmission 
through  the  mail  would  not  be  prosecuted  as  a  crime.  Always 
remember  that  this  did  not  occur  in  Russia  but  in  the  United 
States,  where  it  is  thought  that  the  Constitution  vests  all 
Federal  legislative  power  in  the  Congress  of  the  United  States, 
where  alone  the  criteria  of  guilt  and  legal  rights  should  be 
defined.  However,  the  postal  authorities  at  Washington,  in 
the  light  of  what  they  might  have  done,  are  to  be  praised  for 
allowing  us  at  least  this  much  liberty. 

The  purists'  battle  against  all  nude  in  art  is  not  wholly 
won.  However,  our  postal  laws  have  just  been  amended  by 
adding  the  indefinable  epithet  "filthy"  to  the  description  of 
what  is  non-mailable.  No  doubt  this  additional  statutory 
vagueness  will  accomplish  much  in  the  progress  of  tyranny 
over  literature  and  art.  It  can  mean  anything  or  nothing  ac- 
cording to  the  tastes  of  the  postal  censor. 

Having  desired  to  suppress  bawdry  pictures,  and  the  nude 
in  legitimate  art,  it  became  necessary  that  courts  and  moralists 
for  revenue  should  legislate  into  existance  criteria  of  "ob- 
scenity" adequate  to  accomplish  the  ends.  Again,  the  judicial 
legislation  thus  brought  into  existence  was  capable  of  applica- 
tion to  books  with  illustrations  of  sexual  anatomy,  thus  lead- 
ing up  to  a  censorship  over  scientific  sex-literature.  When 
the  portrayal  of  all  human  nudity  has  been  penalized,  consist- 
ancy  requires  the  suppression  of  all  portrayals  of  sexual 
anatomy.  Soon  we  may  have  the  complete  suppression  of 
both. 

PRUDERY   IN   THE  MEDICAL  PROFESSION. 

In  order  properly  to  understand  the  growth  of  this  new 
legalized  prudery  and  its  intrusion  into  other  realms  of  medical 
science,  we  must  appreciate  to  the  full  the  influence  of  past 
centuries  of  dominant  ascetic  ideals  as  evidenced  by  the 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

manifestations  of  prudery  even  in  the  medical  profession. 
When  we  realize  how  much  of  it  is  to  be  found  even  there, 
we  will  better  appreciate  the  greater  quantity  to  be  found 
in  the  less  educated  and  more  sentimental  masses. 

Of  course,  the  mere  study  of  medicine,  in  and  of  itself, 
does  not  necessarily  relieve  the  physician  of  his  superstitions,, 
either  professional,  moral,  or  religious.  Because  of  this,  we 
find  within  the  medical  profession  quite  as  much  sentimental 
opposition  to  unpopular  allegations  of  truth  and  approval  of 
persecution  for  professional  or  other  heresy  as  are  found  else- 
where. 

At  the  meeting  of  the  American  Medical  Association,  held 
at  Columbus  in  1899,  a  paper  was  read  on  the  "The  Gyneco- 
logic Consideration  of  the  Sexual  Act,"  by  Denslow  Lewis, 
M.  D.,  Professor  of  Gynecology  in  the  Chicago  Polyclinic : 
President  of  the  Attending  Staff  of  the  Cook  County  Hospital, 
Chicago ;  President  of  the  Chicago  Medical  Examiners'  As- 
sociation ;  Vice  President  of  the  Illinois  State  Medical  Society ; 
Ex-President  of  the  Physicians'  Club,  of  Chicago ;  Late  Special 
Commissioner  from  the  Illinois  State  Board  of  Health  and  the 
Health  Department  of  Chicago  for  the  investigation  of 
Municipal  Sanitation  in  European  Cities.  Later  Dr.  Denslow 
Lewis  was  the  Chairman  of  the  section  on  Hygiene  and 
Sanitary  Science  of  the  American  Medical  Association.  I 
mention  these  things  to  show  that  Dr.  Lewis  was  a  man  of 
prominence  in  his  profession.  The  before-named  paper  was 
discussed  some.  Dr.  Howard  Kelly  of  Baltimore,  who  as- 
sumed the  role  of  chief  advocate  for  mystery  and  ignorance, 
among  other  things,  said:  "I  do  not  believe  in  the  current 
teaching  of  the  day,  that  is,  talking  freely  about  these  things 
to  children.  ******  its  discussion  [before  this  association] 
is  attended  with  more  or  less  filth,  and  we  besmirch  ourselves 
by  discussing  it  in  public." 

Later  the  article  was  denied  publication  in  the  Journal 
of  the  American  Medical  Association,  where  papers  read  at 
the  national  meeting  usually  appear.  The  editor  of  that 
Journal,  in  a  letter  to  Dr.  Lewis  refusing  to  publish  the  paper, 
said :  "There  is  nothing  in  it  [the  paper]  that  is  not  true  and 
possibly  it  ought  to  appear  in  the  Journal,  but  with  my  person- 
al views  in  reference  to  this  class  of  literature,  I  hardly  think 
so."  A  member  of  the  publication  committee  of  the  American 
Medical  Association,  justifying  his  conduct  in  voting  against 


ETIOLOGY   AND   DEVELOPMENT   OF   OUR    CENSORSHIP. 

the  publication  of  Dr.  Lewis'  essay,  said:  "The  publication 
of  the  article  will  lay  the  Board  of  Trustees  open  to  the 
charge  of  sending  'obscene'  matter  through  the  mails." 

At  the  next  meeting  of  the  Association,  held  at  Atlantic 
City,  Dr.  Lewis  decided,  if  possible,  to  have  the  Association 
over-rule  the  publication  committee.  In  order  that  members 
might  have  an  enlightened  judgment  as  to  the  character  of  the 
paper  whose  publication  they  were  to  pass  upon,  Dr.  Lewis 
had  his  address  printed  in  pamphlet  form  and  distributed 
among  the  members.  After  all  sorts  of  interference  with  the 
distribution  of  the  pamphlet,  the  matter  finally  came  before 
a  general  session  of  the  Association.  Dr.  Howard  Kelly  stated 
that  he  hud  remained  over  a  day  longer  than  he  intended  so 
he  might  take  part  in  the  controversy  to  make  sure  that  the 
pages  of  the  Journal  were  not  "polluted"  by  the  publication 
of  the  essay  in  question.  After  a  vociferous  meeting  the  com- 
mittee was  sustained  in  its  refusal  to  publish.  Later  on  Dr. 
Lewis  was  forced  to  resign  his  position  as  professor  of 
Gynecology  in  the  Chicago  Polyclinic,  and  Dr.  Fernand 
Henrotin,  who  forced  this  result,  asserted  as  a  reason  that 
Dr.  Lewis  action  at  the  Atlantic  City  meeting  had  excited 
unfavorable  comment. 

In  1901 ,  at  the  St.  Paul  meeting  of  the  American  Medical 
Association,  Dr.  Lewis  presented  a  paper  before  the  section 
on  Hygiene  on  the  subject,  "The  Limitation  of  Venereal 
Diseases."  Although  such  conspicuous  prudes  as  Dr.  Howard 
Kelly  consented  to  discuss  the  paper,  it  also  was  refused  pub- 
lication in  the  official  organ  of  the  Association.6  It  was  about 
this  time  that  the  American  Public  Health  Association  consid- 
ered Gonorrhea  too  loathsome  to  be  tolerated  for  discussion. 

I  have  iit  upon  the  authority  of  one  of  the  most  widely 
known  scientists  of  America,  that  many  medical  journals  hold 
substantially  the  same  attitude  toward  the  discussion  of  sexual 
topics.  No  wonder,  then,  that  such  periodicals  deplore  the 
physicians'  ignorance  of  sexual  science,  and  the  consequent 
unprevented,  but  preventable,  social  ills.7  With  such  supersti- 
tion and  prudery  even  in  the  Medical  profession,  it  is  not 
strange  that  the  populace  should  protest  but  little  because  of 
facts  presently  to  be  recited.  Farther  on  I  shall  quote  some- 
thing showing  the  attitude  of  medical  editors  toward  sex- 
discussion. 

THE  EVOLUTION  TOWARD  MEDICAL  BOOKS. 

Besides  its  prudes,  the  medical  profession  has  its  regular 

6It  was  subsequently  published  in  the  Medico-Legal  Journal  for  June  and  Sep- 
tember,   1903.     For  recital   of  facts,  see  Pee.   Med.  Journ.  about  1907. 
TSee  Am.  Jour,  of  Clinical  Medicine,  January,  1909,  p.  134. 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

quota  of  "moral"  snobs.  As  the  result,  many  physicians,  and 
nearly  all  hospitals,  refuse  to  treat  venereal  diseases.  As  a 
necessary  consequence  of  this  silly  sentimentalism,  those  who 
are  willing  to  treat  such  cases  are  quite  generally  ostracized 
and  called  disagreeable  names.  Naturally,  they  adjust  them- 
selves by  seeking  greater  financial  returns  for  their  efforts  so 
as  to  compensate  them  for  the  odium  they  invite.  So  through 
the  prudery  of  some,  we  develop  out  of  others  the  "lost  man- 
hood" specialist.  Judged  by  any  code  of  rational  ethics,  much 
of  the  advertising  of  venereal  specialists  is  perfectly  legitimate. 
Of  course,  it  is  not  to  be  expected  that  "profession!  ethics"  is 
rational,  and  to  emphasize  the  fact  that  it  has  nothing  to  do 
with  ethical  science  it  assumes  a  distinctive  qualifying  name, 
just  as  "Christian  Science,"  by  the  qualification  attached  to 
"science,"  announces  that  it  bears  no  necessary  relation  to 
any  real  science.  So  it  comes  that  physicians  indiscriminately 
call  all  advertising  doctors  bad  names,  and  are  willing  to 
invoke  any  bad  law  to  punish  a  "bad"  man.  From  such 
motives  the  obscenity  laws  have  been  frequently  invoked 
against  the  man  who  advertises  his  profession  in  an  unconven- 
tional way,  and  "regular"  physicians  have  applauded  the  ef- 
fort because  they  lacked  the  foresight  to  see  that  the  very 
precedents  they  were  helping  to  establish  would  later  be  used 
to  plague  them. 

Quite  a  number  of  physicians  have  been  arrested  and 
convicted  for  sending  through  the  mails  information  as  to 
venereal  diseases.  One  of  these  books,  which  serves  as  a  type, 
has  been  thus  described  by  a  former  assistant  attorney-general 
of  the  post  office  department.  He  says  the  book  "consisted 
mainly  of  a  description  of  the  causes  and  effects  of  venereal 
diseases,  and  secondly,  two  circulars,  one  of  which  described 
in  separate  paragraphs  the  symptome  of  various  venereal 
diseases."  That  was  held  to  be  criminally  "obscene."  The 
courts,  however,  occasionally  take  a  different  view  of  it.8 

Easy  was  the  transition  from  this  outlawing  of  the  warfare 
against  the  venereal  peril  to  the  suppression  of  popular  medi- 
cal books,  which,  though  a  little  more  "legitimate,"  also  cut 
down  the  "regular"  practitioners'  earnings.  The  judicial  legis- 
lation, creating  criteria  of  guilt  in  one  class  of  cases,  was  soon 
found  applicable  to  the  other. 

Having  now  exhibited  the  forces  behind  this  legislation, 
and  something  of  the  evolutionary  processes  by  which  this 

8Hansen  v.  U.  S.,  157  Fed.  Rep.  749. 

54 


ETIOLOGY    AND   DEVELOPMENT   OF   OUR    CENSORSHIP. 

modern  censorship  has  developed,  we  will  examine  a  little  into 
its  achievements. 

THE  CASE  OF  HICKLIN. 

The  first  reported  English  decision9,  which  attempted  to 
state  a  test  of  obscenity,  was  decided  in  1868,  and  furnished  the 
precedent  for  practically  all  American  decisions.  The  facts 
were  as  follows:  Hicklin,  the  accused,  had  sold  a  pamphlet 
entitled,  "The  Confessional  Unmasked :  Showing  the  De- 
pravity of  the  Romish  Priesthood,  the  Iniquity  of  the  Con- 
fessional, and  the  Questions  put  to  Females  in  Confession." 
The  pamphlet  consisted  of  extracts  from  Catholic  theologians, 
one  page  giving  the  exact  original  Latin  quotations  and  the  ad- 
joining page  furnishing  a  correct  translation  thereof.  Much  of 
the  pamphlet  admittedly  was  not  at  all  obscene.  It  was  not 
sold  for  gain,  nor  with  any  intention  to  deprave  morality,  but, 
as  the  defendant  believed,  to  improve  morality.  It  was  sold 
by  him  as  a  member  of  the  "Protestant  Electoral  Union," 
formed  "to  protest  against  those  teachings  and  practices  which 
are  un-English,  immoral,  and  blasphemous,  to  maintain  the 
Protestantism  of  the  Bible  and  the  liberty  of  England.  *  *  *  To 
promote  the  return  to  Parliament  of  men  who  will  assist  them 
in  these  objects  and  particularly  will  expose  and  defeat  the 
deep-laid  machinations  of  the  Jesuits,  and  resist  grants  of 
money  for  Romish  purposes." 

Notwithstanding  all  these  admitted  facts  the  court  held  the 
pamphlet  to  be  obscene  and  laid  down  this  test :  "Whether  the 
tendency  of  the  matter  charged  as  obscenity  is  to  deprave  and 
corrupt  those  whose  minds  are  open  to  such  immoral  influ- 
ences, and  into  whose  hands  a  publication  of  this  sort  may 
fall."  It  will  be  observed  that  it  was  criminal,  if  in  the  hands 
of  any  one  imaginary  person  it  might  be  speculatively  believed 
to  be  injurious,  no  matter  how  much  it  tended  to  improve  the 
morals  of  all  the  rest  of  mankind,  nor  how  lofty  were  the  mo- 
tives of  those  accused,  nor  how  true  was  that  which  they  wrote. 
This  is  still  the  test  of  obscenity  under  our  laws,  and  it  has 
worked  some  results  which  could  hardly  have  been  in  con- 
templation by  our  legislators  in  passing  our  laws  against  inde- 
cent literature. 

This  prosecution,  altho'  not  designated  blasphemy,  was 
yet  more  nearly  allied  to  that  than  is  apparent  on  superficial 
view.  The  main  purpose  of  the  book  was  to  discredit  the 

9Reg.   vs.   Hicklin,  L.   R.  3  Q.  B.  360. 

55 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

largest  and  most  influential  section  of  Christian  priests.  In 
Germany,  where  practically  no  attention  is  given  to  ''obscenity," 
merely  as  such,  a  novel  entitled  "The  Sinful  Bishop,"  written 
by  a  Catholic  priest,  and  which  "in  no  sense  offends  morals," 
was  suppressed.  In  New  York  City,  though  no  attention  is 
given  to  ordinary  plays,  yet,  when  "Mrs.  Warren's  Profession" 
presented  a  plot  wherein  a  priest  in  his  boyhood  had  fathered 
an  illigitimate  child,  that,  in  the  opinion  of  Police  Commissioner 
Bingham,  made  it  "obscene."  Mark  you,  because  it  was  a 
priest  and  tended  to  discredit  clergymen  and  the  church.  No 
play  in  which  non-clericals  are  guilty  of  illicit  love  ever  ex- 
cited the  police  commissioner.  In  California  a  book  substanti- 
ally like  that  in  the  Hicklin  case  was  also  suppressed.10 

THE    MUSEUM    OF    ANATOMY. 

Connected  with  this  subject  of  publicity  about  venereal 
infection,  and  its  relation  to  purity,  I  shall  presume  to  relate 
a  personal  experience.  When  a  boy  of  15  years,  I  left  the  pa- 
rental home  to  find  work  in  Chicago. 

I  soon  discovered  here  a  Museum  of  Anatomy  conducted 
by  one  of  those  persons  whom  we  contemptuously  call 
"quacks/'  because  they  advertise  their  willingness  to  treat 
diseases  which  many  compassionless  moral  snobs  in  the  medi- 
cal profession  refuse  to  treat,  which  refusal  results  in  so 
much  suffering  to  the  innocent. 

In  this  Museum,  for  a  trifling  admission  fee,  I  saw  perfect 
imitations  in  wax  of  all  the  indescribable  horrors  consequent 
upon  venereal  infection.  Of  course  the  exhibition  was  ob- 
scene and  indecent  beyond  description,  but  it  was  something 
more  as  well.  It  was  an  object  lesson  giving  ocular  demon- 
stration of  the  terrible  consequence  of  promiscuity  and  could 
not  do  otherwise  than  to  inspire  a  wholesome  fear  of  which 
I  have  not  rid  myself  to  this  day.  The  vividness  of  the  im- 
pression produced  by  one  such  sight  would  far  surpass  all 
the  moral  and  religious  sermons  that  could  be  preached  from 
now  till  doomsday,  -because  the  innuendos  or  even  the  direct 
statements  can  mean  nothing  to  the  child-mind,  before  it  is 
possessed  of  the  experience  which  enables  it  to  translate  the 
words  into  corresponding  mental  pictures. 

Nowadays  such  museums  are  suppressed  because  of  their 
obscenity.  It  is  deserving  of  consideration  whether  such 
forces  for  good  had  not  better  be  encouraged  by  their  attach- 

10Price  v.  U.   S.,  165  U.   S.   311,  I  believe  was  the  case. 

56 


ETIOLOGY   AND   DEVELOPMENT    OF    OUR    CENSORSHIP. 

merit  to  our  public  schools,  in  preference  to  their  suppression 
because  shocking. 

STRATTON'S  "THE  SEXUAL  LIFE." 

Recently  a  book  agent  was  arrested  in  Boston  for  selling 
"obscence"  literature.  The  following  is  the  title  of  the  book 
which  gave  offense :  "The  Sexual  Life,  Including  Anatomical 
Illustrations  and  Obstetric  Observations,  also  a  series  of  en- 
gravings illustrating  the  Formation  of  Life,  Growth  of  the 
Embryo,  Development  of  the  Foetus,  and  the  Casarean  Opera- 
tion, by  Prof.  Benjamin  Franklin  Stratton.  Sixth  edition 
revised  and  enlarged." 

A  conviction  was  secured,  perhaps  made  possible  largely  by 
other  associated  charges. 

"CLARK'S  MARRIAGE  GUIDE/' 

In  Massachusetts  one  Jones  was  arrested  for  sending 
through  the  mails  "Clark's  Marriage  Guide."  It  must  already 
be  apparent  that  under  the  laws  in  question  no  one  can  tell 
in  advance  what  is  or  is  not  criminal,  'because  no  one  can  pre- 
determine what  will  be  the  opinion  of  a  judge  or  jury  upon 
the  speculative  problem  of  the  book's  psychological  tendency 
upon  some  hypothetical  reader  suffering  from  sexual  hyper- 
aestheticism.  Unfortunately,  Mr.  Jones  went  for  advice  to  a 
lawyer  who  must  have  been  a  good  deal  of  a  prude,  and  who 
therefore  advised  his  client  to  plead  guilty,  which  he  did.  Later, 
when  Judge  Lowell  was  called  upon  to  impose  the  sentence, 
he  is  reported  as  having  said  that  the  book  "is  not  immoral 
or  indecent  at  all,"  and  imposed  only  a  very  light  fine.  In 
Chicago,  the  same  book  was  suppressed  by  heavy  fines ;  aggre- 
gating over  $5,000.00. 

"THE  LIFE  SEXUAL/' 

Edgar  C.  Beall,  M.D.,  wrote  a  little  book  entitled  "The 
Life  Sexual,  a  Study  of  the  Philosophy,  Physiology,  Science, 
Art  and  Hygiene  of  Love,"  which  was  suppressed  in  1906  by 
threat  of  prosecution.  The  book  was  written  for  the  general 
reader  and  differs  from  the  ordinary  "purity"  book  in  that  the 
theology  of  sex  in  supplanted'  by  a  more  enlightened  view,  and 
much  very  wholesome  and  needed  advice,  in  spite  of  its  slight 
element  of  "phrenophysics."  However,  this  had  nothing  to 
do  with  its  "obscenity."  I  have  read  much  of  this  book  and 
can  not  for  the  life  of  me  conceive  why  it  should  be  deemed 
offensive,  because  the  book  is  written  in  a  refined  style  and  is 


57 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

instructive.  The  opening  chapter  is  devoted  to  a  strong 
criticism  of  "The  Ban  upon  Sexual  Science,"  and  maybe 
therein  lies  the  cause  of  complaint.  Another  explanation  was 
offered  by  a  minor  official,  and  it  was  that  this  matter,  coming 
to  the  attention  of  the  post  office  department  immediately  after 
the  suppression  of  Professor  Malchow's  book,  the  similarity  of 
title  suggested  a  necessary  similarity  in  treatment  of  the  sub- 
ject and  therefore  a  like  "obscenity." 

"VICE:   ITS   FRIENDS  AND  ITS   FOES";   "UP-TO-DATE   FABLES." 

In  a  letter  dated  Nov.  15,  1907,  an  assistant  Attorney 
General  of  the  U.  S.,  who  really  is  the  master  of  our  intel- 
lectual food  supply,  pronounced  a  magazine  unmailable  for 
advertising  "Vice :  Its  Friends  and  its  Foes,"  and  "Up-to-Date 
Fables/'  of  which  he  says — "both  of  which,  from  the  table 
of  contents  set  forth  in  each  advertisement,  are  obscene,  lewd, 
lascivious,  or  indecent."  The  first  of  these  booklets  I  have 
seen  and  in  the  main  it  is  an  attack  on  Comstockery,  and  an 
argument  for  sexual  intelligence.  Even  Mr.  Comstock  would 
not  have  found  this  booklet  to  be  obscene,  though  of  course 
he  would  disagree  with  its  conclusions.  The  table  of  contents 
is  too  long  to  reproduce  here,  but  I  will  reproduce  the  table 
of  contents  of  the  "Up-to-Date  Fables"  just  to  show  how  little 
information  is  necessary  to  discover  "obscenity"  when  one 
has  a  "pure"  mind.  Here  it  is:  "Contents:  the  Male  Amazons, 
The  Strassburg  Geese,  Bread  Eaten  in  Secret,  The  One  Tune, 
A  Tale  about  Noses,  The  Women  and  the  Wells,  Mrs. 
Grundy's  Two  Boarding  Schools,  The  Emancipated  Horses." 
Now,  then,  from  that,  and  that  alone,  a  pee-wee  clerk  in  the 
government  employ  is  able  to  decide  and  does  decide,  that  this 
booklet  is  degrading  to  our  morals,  an  advertisement  telling 
us  where  it  may  be  had  is  unmailable,  and  to  send  any  of 
these  through  the  mails  entitles  the  sender  to  five  years  in  jail. 

CRADDOCK  AND  STOCKHAM  CASES. 

As  illustrating  how  our  fears  are  often  but  the  product 
of  ignorance,  I  am  going  to  relate  to  you  how  and  why  I 
changed  my  mind  about  two  booklets  pronounced  "the  most 
obscene"  that  ever  came  to  the  criminal  court.  If  these  really 
are  the  most  offensive  of  condemned  literature  then  I  am  pre- 
pared to  stand  all  the  rest.  Both  were  entitled  "The  Wedding 
Night,"  and  dealt  with  their  subject  in  a  very  detailed  manner. 
One  was  by  an  unfortunate  woman  named  Ida  Craddock,  who 

58 


ETIOLOGY    AND    DEVELOPMENT    OF    OUR    CENSORSHIP. 


styled  herself  a  "purity  lecturer."  Mr.  Comstock  denounced 
her  book  as  "the  science  of  seduction.''  It  could  have  been 
more  accurately  described  as  advice  for  the  best  means  of  con- 
summating the  marriage.  The  judge  who  denounced  the  au- 
thor called  it  "indescribably  obscene."  To  one  who,  from 
diseased  sex-sentiveness,  is  incapable  of  reading  a  discussion 
of  sex  functioning  with  the  same  equanimity  as  would  ac- 
company a  discussion  of  lung  functioning,  or  to  one  who 
would  apply  the  absurd  judicial  "tests"  of  obscenity,  this 
booklet  must  appear  just  as  these  men  described  it.  Of  course 
she  was  found  guilty.  Later  she  committed  suicide  to  escape 
the  penalty  of  the  law. 

For  the  book  Mrs.  Craddock  claimed  to  have  the  endorse- 
ment of  several  prominent  members  of  the  Woman's  Chris- 
tian Temperance  Union,  and  published  a  letter  from  the  Rev. 
W.  S.  Rainsford,  the  very  distinguished  rector  of  the  fash- 
ionable St.  George's  Episcopal  Church  of  New  York  City,  in 
which  he  said :  "This  much  I  will  say,  I  am  sure  if  all  young 
people  read  carefully  The  Wedding  Night/  much  misery,  sor- 
row, and  disappointment  could  be  avoided/' 

The  other  booklet  was  by  Dr.  Alice  Stockham,  the  well 
known  author  of  Tokology  and  similar  books,  and  in  name 
and  substance,  I  believe,  it  was  very  much  like  the  Craddock 
book.  A  Post-Office  Inspector  pronounced  it  the  most  obscene 
book  he  had  ever  read.  She  was  convicted  and  heavily  fined, 
though  with  many  friends  she  vigorously  defended  the  pro- 
priety and  necessity  for  her  booklet  of  instructions.  Of  course 
neither  of  these  books  nor  any  like  them  are  now  anywhere 
to  be  had. 

The  question  is  what  good  could  be  done  by  such  books, 
so  unquestionably  obscene  if  judged  by  present  judicial  stand- 
ards? I  confess  that  when  first  I  heard  of  these  cases  I  knew 
of  no  excuse  for  the  existence  of  this  unpleasant  literature. 

I  had  read  in  medical  literature  statements  like  this :  "The 
shock  and  suffering  endured  by  the  young  wife,  in  the  nup- 
tial bed,  is  too  frequently  prolonged  into  after-life,  and  may 
seriously  mar  the  connubial  bliss."11  Such  generalizations, 
however,  meant  nothing  to  me  until  a  strange  set  of  circum- 
stances came  to  my  notice,  which  I  will  relate  to  you  in  the 
order  of  their  occurrence. 

Not  long  since  I  learned  of  the  marriage  of  persons  in  a 

uThe  Sexual  Life,  p.  127. 

59 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

most  conservative  social  set.  The  couple  had  been  chums 
since  childhood  and  engaged  lovers  for  many  years.  After 
this  long  waiting,  came  the  joyously  anticipated  wedding, 
and  the  bride  was  the  ideal  picture  of  radiant  love.  The  day 
after  her  marriage  she  acted  strangely,  and  by  evening  her 
husband  and  relatives  concluded  that  her  reason  had  been  de- 
throned, and  ever  since  she  has  been  confined  in  a  sanitarium. 
Through  her  incoherent  speech,  only  one  thing  is  sure  and  con- 
stant, and  that  is  that  she  never  again  wants  to  see  her  hus- 
band. More  information  is  not  given  to  the  conservative  circle 
of  her  friends.  All  profess  ignorance  as  to  the  immediate 
cause  of  this  strange  mania,  which  reverses  the  ambition,  hope, 
and  love  of  a  lifetime. 

Strangely  enough,  within  two  days  after  hearing  this  pain- 
ful story,  a  friend  handed  me  the  Pacific  Medical  Journal,  for 
January,  1906. 12  Therein  I  read  the  following  paragraphs 
and  to  me  the  mystery  had  been  solved.  Now  I  thought  I 
knew  why  one  bride  had  her  love  turned  to  hate,  her  mind 
ruined,  and  why  her  relatives  were  so  shamefacedly  silent, 
lest  some  should  learn  a. useful  lesson  from  their  affliction. 
j  /  The  material  portion  of  the  article  reads  as  follows :  "While 
upon  this  point  I  would  say  that  under  the  so-called  sanctity 
of  the  Christian  marriage,  untold  thousands  of  the  most  brutal 
rapes  have  been  perpetrated,  more  brutal  and  fiendish  indeed, 
than  many  a  so-named  criminal  rape.  So  outrageous  has  been 
the  defloration  of  many  a  young  girl-wife  by  her  husband, 
that  she  has  been  invalided  and  made  unhappy  for  the  balance 
of  her  natural  life.  There  are  cases  on  record  where  so  vio- 
lently has  the  act  of  copulation  been  performed  that  the  hymen, 
being  thick  and  but  slightly  perforated,  death  has  followed 
its  forcible  rupture,  and  the  nervous  shock  associated  with  the 
infamous  proceeding.  Here  the  criminally  ignorant  young 
husband  and  the  ravisher  are  at  par,  and  no  censure  that  the 
world  can  mete  out  to  them  can  be  too  great." 

And  now  I  thought  I  had  received  new  light  on  those 
strange  and  not  infrequent  accounts  one  reads  in  the  news- 
papers of  young  women  who  commit  suicide  during  their 
"honeymoon." 

Here  another  strange  chance  led  me  upon  Dr.  Mary 
Walker's  book,  "Unmasked,  or  the  Science  of  Immorality," 

"Article  by  R.  W.  Shufeldt,  M.  D.,  Major  Medical  Department  of  U.  S.  Army, 
and  Trustee  of  the  Medico-Legal  vSociety  of  New  York. 

60 


. 


ETIOLOGY    AND   DEVELOPMENT    OF   OUR    CENSORSHIP. 

where  I  read  the  following  paragraph :  "There  are  instances 
of  barrenness,  where  the  only  cause  has  been  the  harshness 
of  husbands  on  wedding  nights.  The  nerves  of  the  vagina 
were  so  shocked  and  partially  paralyzed  that  they  never  re- 
covered the  magnetic  power  to  foster  the  life  of  the  sperma- 
tozoa until  the  conception  was  perfected/' 

With  this  much  I  went  to  a  physician  friend,  and  he 
promptly  confirmed  all  that  had  been  said  by  the  others  and 
handed  me  "Hygiene  of  the  Sexual  Functions,  a  lecture  de- 
livered in  the  regular  course  at  Jefferson  Medical  College  of 
Philadelphia,  by  Theophilus  Parvin,  A.  D.,  M.  D.,  Professor 
of  Obstetrics  and  Diseases  of  Women  and  Children."  On 
page  two  I  read  the  following:  "Occasionally  you  read  in  the 
newspapers  that  the  bride  of  a  night  or  of  a  few  days,  or  of 
a  few  weeks,  has  gone  home  to  her  parents,  and  never  to  re- 
turn to  her  husband ;  but  there  is  a  Chicago  divorce  conclud- 
ing the  history.  One  of  the  most  distinguished  French  physi- 
cians, Bertillon,  has  recently  said  that  every  year,  in  France, 
he  knows  of  thirty  to  forty  applications  for  divorce  within  the 
first  year  of  marriage,  and  he  has  reason  to  believe  that  a 
majority  of  these  are  from  the  brutalities  of  the  husband  in 
the  first  sexual  intercourse." 

After  reading  these  statements  from  highly  reputable  phy- 
sicians, I  could  no  longer  doubt  that  these  "most  obscene 
books  ever  published,"  were  really  most  humanitarian  efforts 
on  the  part  of  those  who  perhaps  had  a  wider  knowledge  than 
I  possessed.  If  this  is  the  worst,  I  am  prepared  to  take 
chances  on  lesser  "obscenity." 

"cONJUGfAL  LOVE." 

The  two  books  now  about  to  be  mentioned  are  not  medical 
books  in  any  sense,  and  yet  mark  a  sort  of  transition  state 
toward  the  more  scientific  discussion  of  sex-problems. 

The  heading  is  the  title  of  one  of  the  best  known  books 
of  that  conspicuous  philosopher  and  dreamer,  Emanuel  Swe- 
denborg.  Of  course  this  book  was  written  about  a  century 
and  a  half  ago.  The  Swederiborg  Society  of  London  was 
organized  in  1810,  since  which  time  it  has  been  promoting  the 
circulation  of  the  more  important  works  of  Swedenborg.  It 
is  probable,  therefore,  that  the  English  rendition  of  "Conjugial 
Love"  has  been  on  the  market  for  over  half  a  century.  In 
the  year  1909,  in  the  City  of  Philadelphia,  a  magistrate  judici- 
ally declared  it  to  be  obscene.  Thus,  again,  not  only  was  an 

61 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

"obscene"  book  suppressed,  but  also  a  heretical  sect  was  dis- 
credited. 1S 

"LOVE  AND  ITS  AFFINITIES." 

This  is  the  title  of  a  very  interesting  little  book  by  Dr. 
George  F.  Butler,  of  Chicago,  who  is  well  known  to  the 
medical  profession. 

In  the  preface,  the  author  describes  his  effort  as  one  to 
present  "a  physiological  study  of  love  and  its  relationship  to 
phychical  as  well  as  physiological  phenomena.  *****  The 
grosser  features  of  the  sexual  instinct,  of  itself  ideally  pure — 
revolting  as  they  may  appear,  have,  therefore,  not  been 
disguised.  *****  The  motive  of  the  present  monograph 
is  an  ascent  from  the  lower  to  a  higher,  purer  phase  of  pas- 
sion, an  aspiration  whose  heavenward  struggle  and  stately 
floresence  are  the  crown  and  glory  of  mortal  love." 

And  such  a  book  by  such  a  man  cannot  go  through  the 
mails,  nor  be  so  advertised,  because  a  postal  clerk  says  it  can't 
and  is  backed  by  a  statute  so  uncertain  that  it  neither  affirms 
nor  contradicts  his  authority. 

It  used  to  be  thought  that  ours  was  not  a  bureaucracy  and 
that,  because  of  our  Constitution,  departmental  legislation 
could  never  supersede  congressional  enactment.  It  was  even 
judicially  declared  that  all  "is  purely  legislative  which  defines 
rights,  permits  things  to  be  done  or  prohibits  the  doing  there- 
of."14 But  what  does  a  stupid  public,  or  its  official  masters, 
care  for  such  old  judicial  opinions  as  to  constitutional  rights, 
when  these  interfere  with  the  masters'  lust  for  power,  and 
moral  sentimentalism  ? 

"PURITY"  BOOKS  SUPPRESSED. 

Recently  a  distinguished  "purity"  worker  issued  a  whole- 
some little  pamphlet  entitled  "Not  a  Toothache  or  a  Bad  Cold," 
which  was  suppressed  by  threat  of  arrest,  though  the  Post- 
Office  authorities  had  declared  it  mailable. 

"The  Social  Peril"  is  a  book  dealing  with  venereal  infec- 
tion, and  is  by  one  of  the  best  known  professional  moralists 
in  America.  Mr.  Comstock  threatened  him  with  arrest  for 
"obscenity,"  partly  for  a  fifteen  page  quotation  from  a  book 
by  Rev.  Henry  Ward  Beecher.  The  "Social  Peril"  is  sup- 
pressed, through  fear  of  a  criminal  prosecution,  though  other 
elements  finally  culminated  to  accomplish  the  same  end. 

It  seems  part  of  the  irony  of  fate  that  those  who  are  more 

"The  Public,  Mch.  26,  1909. 

14U.  S.  v.  Mathew,  146  Fed.  Rep.  308;  U.  S.  v.   Eaton,  144  U.  S.  687. 

62 


ETIOLOGY    AND   DEVELOPMENT    OF    OUR    CENSORSHIP. 

or  less  consciously  fostering  this  absurd  legislation  in  .support 
of  the  ascetic  ideal,  should  be  caught  in  their  own  traps. 
There  are  other  examples  of  the  same  kind  to  which  we  will 
direct  attention. 

"FROM  THE  BALL-ROOM  TO  HELL." 

This  book  has  the  endorsement  of  practically  all  opponents 
of  dancing.  It  furnished  the  suggestions  for  thousands  of 
sermons ;  it  had  the  commendation  of  innumerable  clergymen, 
including  several  bishops ;  it  went  through  the  mails  unchal- 
lenged for  12  years.  A  Chicago  postal  official  now  declares  it 
criminally  "obscene"  and  the  book  is  suppressed.  Again  it  is 
not  a  rule  of  general  law  which  makes  this  book  criminal,  but 
the  whim  or  caprice  of  a  postal  subordinate. 


In  1892,  Dodd,  Mead  &  Co.,  published  a  little  book  entitled 
"Almost  Fourteen,"  written  by  Mortimer  A.  Warren,  a  public 
school  teacher.  Before  publishing  it,  Mr.  Mead  submitted  the 
manuscript  to  his  wife  and  to  the  pastor  of  the  Broadway 
Tabernacle,  and  of  the  Church  of  the  Heavenly  Rest,  and  to 
Dr.  Lyman  Abbott.  All  these  endorsed  its  aim  and  tone. 

After  publication,  there  were  of  course  prudes  who  criti- 
cised, but  such  papers  as  the  Christian  Union  gave  it  a  favor- 
able review.  The  Rev.  L.  A.  Pope,  then  pastor  of  the  Bap- 
tist church  of  Newburyport,  Mass.,  placed  the  book  in  the 
Sunday  School  library  of  his  church,  and  purchased  a  large 
number  at  a  reduced  price,  selling  them  at  cost,  simply  that 
the  young  might  read  and  learn,  so  well  did  he  think  of  the 
book.  In  my  own  view  it  would  be  impossible  to  deal  prop- 
erly with  the  subject  of  sex  and  do  it  in  a  more  delicate,  inof- 
fensive manner. 

No  question  was  raised  about  the  book  until  1897,  when 
Albert  F.  Hunt,  of  Newburyport,  Mass.,  was  arrested  for  sell- 
ing obscene  literature.  Mr.  Hunt  had  made  himself  very  un- 
popular as  an  aggressive  reformer.  He  had  attacked  the  police 
force,  exhibited  the  iniquity  of  the  city  administration,  ex- 
posed the  sins  of  the  city,  such  as  the  practice  of  taking  nude 
photographs,  the  aggressions  of  the  saloonkeepers,  and  exposed 
the  owners  of  buildings  leased  for  prostitution.  He  had  many 
influential  enemies.  In  this  condition  he  secured  permission  to 
republish  "Almost  Fourteen"  in  his  paper,  was  arrested,  con- 
victed, and  fined. 

63 


OBSCENE   LITERATURE    AND    CONSTITUTIONAL    LAW. 

I  have  no  doubt  in  my  mind  that,  judged  by  the  scientifical- 
ly absurd  tests  of  obscenity  as  applied  by  the  courts,  this  in- 
nocent book  was  criminal  under  the  law  against  obscene  litera- 
ture, because  no  doubt  somewhere  there  existed  some  sexually 
hyperaesthetic  person  into  whose  hands  it  might  come,  and  in 
whose  mind  it  might  induce  lewd  thoughts.  The  legislative 
"obscenity"  takes  no  account  of  the  thousands  who  might  be 
benefited  by  such  a  book ;  it  only  asks  if  there  may  be  one 
so  weak  that  it  might  injure  him. 

After  this  conviction  for  circulating  humanitarian  litera- 
ture of  a  most  useful  kind,  the  author  of  this  good  book  was 
driven  from  his  place  as  principal  of  the  public  schools,  by  the 
prudish  bigotry  of  his  fellow  townsmen  and  employers.  The 
book  can  now  be  had  only  with  much  of  its  most  useful  matter 
eliminated.  We  need  liberty  of  the  press  for  persons  like  War- 
ren, Hunt,  and  Dodd,  Mead  &  Co. 

MRS.  CARRIE  NATION  ARRESTED. 

Most  of  the  literature  intended  to  promote  personal  purity 
is  so  veiled  in  a  fog  of  verbiage  as  to  be  utterly  meaningless 
to  the  young,  because  they  lack  the  intelligence  which  alone 
could  make  it  possible  to  translate  the  innuendoes  into  the  men- 
tal pictures  which  the  words  are  supposed  to  symbolize.  Re- 
cently Mrs.  Carrie  Nation  in  her  paper  published  some  whole- 
some advice  to  small  boys.  She  used  scientifically  chaste  Eng- 
lish and  took  the  trouble  to  define  the  meaning  of  her  words. 
She  wrote  so  plainly  that  there  was  actually  a  possibility  that 
boys  might  understand  what  she  was  trying  to  teach  them. 
She  wrote  with  greater  plainness  than  some  of  those  books 
which  have  been  adjudged  criminally  obscene. 

A  warrant  was  issued  for  her  in  Oklahoma,  for  sending 
obscene  matter  through  the  mails.  She  being  then  in  Texas 
on  a  lecture  tour,  was  there  arrested  and  taken  to  Dallas  be- 
fore a  U.  S.  Commissioner.  Fortunately  she  found  there  a 
U.  S.  Attorney  with  some  sense,  who,  though  he  did  not  ap- 
prove of  her  taste,  consented  to  the  discharge  of  the  prisoner. 
Mrs.  Nation  is  to  be  congratulated  upon  having  discovered 
one  spot  in  this  country  not  dominated  by  the  prurient  prudery 
of  New  England  and  New  York.  Unfortunately  none  can  know 
when  and  where  another  healthy-minded  prosecutor  will  be 
found.  However,  the  postal  authorities,  disagreeing  with  the 
courts,  still  exclude  the  article  from  the  mails.15 

"The  Hatchet,   Dec.,   1906. 

64 


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On* 


ETIOLOGY   AND   DEVELOPMENT   OF   OUR    CENSORSHIP. 


THE  BIBLE  JUDICIALLY  DECLARED  OBSCENE. 

One  of  the  early  American  prosecutions  of  note  was  that 
of  the  distinguished  eccentric,  George  Francis  Train,  in  1872. 
He  was  arrested  for  circulating  obscenity,  which  it  turned  out 
consisted  of  quotations  from  the  Bible.  Train  and  his  at- 
torneys sought  to  have  him  released  upon  the  ground  that  the 
matter  was  not  obscene,  and  demanded  a  decision  on  that  issue. 
The  prosecutor,  in  his  perplexity,  and  in  spite  of  the  protest  of 
the  defendant,  insisted  that  Train  was  insane.  If  the  matter 
was  not  obscene,  his  mental  condition  was  immaterial,  because 
there  was  no  crime.  The  court  refused  to  discharge  the  pris- 
oner as  one  not  having  circulated  obscenity,  but  directed  the 
jury,  against  their  own  judgment,  to  find  him  not  guilty,  on  the 
ground  of  insanity,  thus,  by  necessary  implication,  deciding  the 
Bible  to  be  criminally  obscene. 

Upon  a  hearing  on  a  writ  of  habeas  corpus,  Train  was  ad- 
judged sane,  and  discharged.  Thus  an  expressed  decision  on 
the  obscenity  of  the  Bible  was  evaded,  though  the  unavoidable 
inference  was  for  its  criminality. 

In  his  autobiography,  Train  informs  us  that  a  Cleveland 
paper  was  seized  and  destroyed  for  republishing  the  same  Bible 
quotations  which  had  caused  his  arrest  in  New  York.  Here 
then  was  a  direct  adjudication  that  parts  of  the  Bible  are  in- 
decent, and  therefore  unmailable.16 

In  1895,  John  B.  Wise  of  Clay  Center,  Kansas,  was  arrested 
for  sending  obscene  matter  through  the  mails  which  again  con- 
sisted wholly  of  a  quotation  from  the  Bible.  In  the  United 
States  Court,  after  a  contest,  he  was  found  guilty  and  fined. 

Just  keep  in  mind  a  moment  these  court  precedents  where 
portions  of  the  Bible  have  been  judicially  condemned  as  crim- 
inally obscene,  while  I  connect  it  with  another  rule  of  law. 
The  courts  have  often  decided  that  a  book  to  be  obscene  need 
not  be  obscene  throughout,  the  whole  of  it,  but  if  the  book  is 
obscene  in  any  part  it  is  an  obscene  book,  within  the  meaning 
of  the  statutes.17 

You  will  see  at  once  that  under  the  present  laws  and  rely- 
ing wholly  on  precedents  already  established,  juries  of  irre- 
ligious men  could  wholly  suppress  the  circulation  of  the  Bible, 
and  in  some  states  the  laws  would  authorize  its  seizure  and  de- 
struction and  all  thfs  because  the  words  "Indecent  and  ob- 

16Here  I  think  Train  must  be  referring  to  the  conviction  of  John  A.  Lant, 
publisher  of  the  Toledo  Sun,  and  later  other  papers. 

17U.   S.  v.  Bennett,  6  Blatchford  838,  F.  C.  No.   14571. 

65 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

scene"  are  not  definable  in  qualities  of  a  book  or  picture.  In 
other  words,  all  this  iniquity  is  possible  under  present  laws  be- 
cause courts  did  not  heed  the  maxim,  now  scientifically  de- 
monstrable, viz. :  "Unto  the  pure  all  things  are  pure." 

Of  course,  the  Old  Testament  in  common  with  all  books  that 
are  valuable  for  moral  instruction,  contains  many  unpleasant 
recitals,  but  that  is  no  reason  for  suppressing  any  of  them. 
I  prefer  to  put  myself  on  the  side  of  that  English  judge  who 
said :  "To  say  in  general  that  the  conduct  of  a  dead  person  can 
at  no  time  be  canvassed;  to  hold  that  even  after  ages  are 
passed  the  conduct  of  bad  men  cannot  be  contrasted  with  the 
good,  would  be  to  exclude  the  most  useful  part  of  history."18 

I  therefore  denounce  this  law  because  under  it  may  be  de- 
stroyed books  containing  records  of  human  folly  and  error 
from  which  we  may  learn  valuable  lessons,  for  avoiding  the 
blight  from  violating  nature's  moral  laws.  Under  our  present 
statutes  some  of  the  writings  of  the  greatest  historians  and 
literary  masterpieces  have  been  suppressed  and  practically  all 
would  be  suppressed  if  the  courts  should  apply  to  them  im- 
partially the  present  judicial  test  of  obscenity. 

SUPPRESSED  BECAUSE  NOT  "OBSCENE." 

Every  evil,  real  or  imaginary,  which  we  endeavor  to  avoid 
by  wrong  methods  seem  necessarily  to  involve  other  evils  as 
a  consequence.  By  suppressing  all  sex  discussion  we  make  it 
impossible  for  people  to  satisfy  their  natural  and  healthy 
inquisitiveness.  Thus  we  unintentionally  promote  morbid 
curiosity,  in  view  of  which  those  who  are  its  victims  become 
an  easy  prey  to  the  wiles  of  the  designing.  I  will  illustrate 
by  one  concrete  example.  One  of  the  suppressed  books  of 
fiction  which  has  been  much  discussed  is  called  "Fanny  Hill." 
Because  it  is  believed  to  be  extremely  racy  and  because  of 
the  great  risk  in  selling  it  the  real  "Fanny  Hill"  commands 
from  collectors  a  very  fancy  price ;  copies  have  been  reported 
sold  for  as  high  as  forty  ($40.00)  dollars.  Knowing  this, 
some  unscrupulous  book  dealers  will  take  any  ordinary  con- 
ventional novel,  clothe  it  in  a  new  cover  and  title  page  which 
will  give  it  the  name  of  "Fanny  Hill,"  and  thus  sell  it  to  the 
gullible  seekers  after  pornography  for  from  ten  to  twenty 
dollars.  Of  course  the  purchasers  only  fool  themselves.  It 
is  not  of  such  a  case,  however,  that  I  am  going  to  write,  tho', 
manifestly,  the  postal  authorities  could  not  see  the  difference 

18Rex  vs.  Topham,  4  T.  R.  129. 

66 


ETIOLOGY    AND    DEVELOPMENT    OF    OUR    CENSORSHIP. 

between  such  a  case  as  the  one  described  and  the  following 
one. 

A  publisher  has  been  getting  out  a  little  series  of  pamphlets 
that  contain  well  written  and  pleasing  short  stories,  with  not 
a  single  improper  suggestion,  word  or  thought,  even  tho'  judged 
by  the  most  conservative  of  conventional  standards.  There- 
fore, to  attract  attention  and  promote  sales,  catchy  titles  were 
given  to  these  pamphlets ;  some  of  the  titles  seem  to  have  been 
chosen  with  the  view  to  induce  young  people  to  read  what 
would  give  them  some  very  wholesome,  conventional  and,  I 
fear,  necessary  though  commonplace,  advice.  The  following 
are  the  titles  of  such  pamphlets :  Advice  To  Young  Husbands, 
Only  A  Boy,  A  Siege  In  The  Dark,  Only  A  Girl,  A  Young 
Girl's  Book  Of  Experience,  Eaten  Alive  and  Sham  Religion, 
Revelations  Of  A  Model,  A  Country  Boy's  First  Night's  Ex- 
perience, History  of  Kissing,  and  The  Confessions  of  Two 
Old  Maids.  Unto  the  lewd  all  things  are  lewd.  There  are 
some  people  in  official  life,  as  well  as  out  of  it,  to  whom  such 
titles  as  the  foregoing  could  suggest  nothing  but  lasciviousness, 

Such  minds  are  incapable  of  imagining  non-sexual  "Advice 
to  Young  Husbands,"  or  non-sexual  "Confessions  of  Two 
Old  Maids,"  and  solely  because  of  their  own  degenerate  condi- 
tion these  titles  would  create  anticipations  of  psycho-salacious 
joys.  But  the  fact  remains  that  the  titles  were  as  accurately 
descriptive  of  the  contents  of  the  books  as  book-titles  usually 
are.  Under  these  circumstances,  no  man  learned  in  the  law 
would  dream  that  these  titles  were  a  misrepresentation  of  es- 
sential fact  such  as  would  entitle  the  purchaser  of  a  lot  of 
these  books  to  recover  back  the  purchase  price  on  the  ground 
of  fraud  because  the  books  were  not  in  fact  obscene.  Al- 
though the  book-titles  in  question  do  not  amount  to  a  repre- 
sentation that  the  contents  are  obscene,  and  altho'  the  contents 
were  not  in  fact  obscene,  nor  claimed  by  any  one  to  be  so,  yet 
the  Postal  Department  concluded  that  the  excessively  lewd, 
whose  unreasonable  sensual  anticipations  might  be  disap- 
pointed, must  be  protected  against  the  misleading  effects  of 
these  titles  upon  their  own  psycho-sexual  abnormity.  Ac- 
cordingly, the  authorities  threatened  to  stop  the  vendor's  mail 
by  a  fraud  order  if  he  did  not  cease  selling  these  booklets.  Of 
course  he  suppressed  the  books.  If  this  is  fraud  then  all  the 
"purity"  sex-books  which  are  being  sold  by  many  professional 
moralists  also  are  frauds.  These  books  are  all  advertised  to 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

help  one  solve  his  personal  sex-problems,  but  very,  very  seldom 
give  the  least  bit  of  enlightenment  or  assistance.  But  we  must 
not  complain.  Like  the  King,  the  Postal  Department  can  do 
no  wrong. 


Dr.  Sanger's  "History  of  Prostitution"  is  one  of  the  best, 
if  not  the  most  learned  disquisition  in  the  English  language, 
which  deals  with  that  important  problem.  It  was  first  pub- 
lished in  1858,  and  in  numerous  editions  has  been  on  the  mar- 
ket ever  since.  I  am  advised  that  it  has  been  publicly  en- 
dorsed even  by  an  extremely  puritanical  postal  inspector  and 
has  been  widely  advertised  and  sold  through  the  "Purity" 
journals.  No  one  ever  dreamed  that  it  was  an  obscene  book 
until  November  I5th,  1907,  when  the  post  office  authorities 
for  sentimental  reasons  desired  to  suppress  The  American 
Journal  of  Eugenics  and  were  looking  for  an  excuse  to  give  to 
the  editor  and  the  public.  R.  M.  Webster,  Acting  Assistant 
Attorney  General  for  the  Post  Office  Department,  on  the  date 
last  above  given,  wrote  an  opinion  excluding  said  magazine 
from  the  mails,  in  part  for  advertising  the  book  under  dis- 
cussion. He  wrote:  "On  page  50  is  advertised  a  book  en- 
titled 'The  History  of  Prostitution,'  which  from  its  very  name 
is  clearly  indecent  and  unfit  for  circulation  through  the  mail." 
Evidently  he  had  not  read  the  book,  but  simply  decided  that 
the  subject  was  one,  no  matter  how  it  was  treated,  which  could 
not  be  discussed  through  the  mail,  and  his  arbitrary  will  and 
not  statutory  criteria  determined  the  issue.  Yet,  some  con- 
tinue to  assert  that  ours  is  a  government  by  law.  The  people 
may  make — must  make — laws  upon  the  subject  of  prostitution, 
but  cannot  get  enlightenment  upon  it,  because  their  servant, 
a  Government  employee,  says  they  cannot  be  entrusted  with 
knowledge. 

DR.    MALCHOW   AND   "THE   SEXUAL   LIFE/' 

Connected  with  the  Methodist  Episcopal  Church  schools  is 
Hamline  University  College  of  Physicians  and  Surgeons.  C. 
W.  Malchow  was  there  the  Professor  of  Proctology  and  As- 
sociate in  Clinical  Medicine.  He  was  also  the  President  of 
the  Physicians'  and  Surgeons'  Club  of  Minneapolis,  and  a 
member  of  the  Hennepin  County  Medical  Society,  the  Minne- 
sota State  Medical  Society,  and  the  American  Medical  Asso- 
ciation. 

68 


ETIOLOGY    AND   DEVELOPMENT    OF    OUR    CENSORSHIP. 

He  wrote  a  book  on  "The  Sexual  Life"  which  received 
strong  praise  from  educational  and  medical  journals  and  from 
professional  persons.  I  have  seen  commendatory  reviews  from 
ten  professional  magazines.  While  in  press,  he  read  a  most 
Duplexing  chapter  from  the  book  to  a  meeting  of  Methodist 
Ministers  and  its  delicate  treatment  of  a  difficult  subject  was 
strongly  commended. 

Yet  under  the  absurd  tests  prescribed  by  the  courts  and  in 
spite  of  the  protests  of  the  Minneapolis  Times  and  Tribune, 
Dr.  Malchow  and  his  publisher  are  (1907)  both  serving  a  jail 
sentence,  for  selling  through  the  mail  a  high  class  scientific 
discussion  of  sex  to  the  laity.19 

During  the  trial  the  court  refused  the  defendants  the  right 
to  prove  that  all  in  the  book  was  true,  holding,  with  all  the 
judicial  decisions,  that  their  being  true  was  immaterial  in  fixing 
guilt.  An  unsuccessful  effort  was  make  to  prove  the  need  for 
such  a  book  because  of  the  great  ignorance  of  the  public  upon 
sex  matters,  and  the  "learned"  judge  remarked  that  he  hoped 
it  was  true  that  the  public  was  ignorant  of  such  matters,  and 
excluded  the  evidence.  President  Roosevelt  being  asked  by 
members  of  Congress  to  pardon  the  convict  because  of  the 
propriety  of  his  book,  is  reported  to  have  expressed  an  amaz- 
ing regret  that  he  could  not  prolong  the  sentence. 

This  case  received  a  little  attention  in  the  medical  journals, 
but,  let  it  be  said  to  their  everlasting  disgrace,  the  great  medical 
organizations  of  this  country  were  either  too  indifferent  or  too 
prudish  or  too  cowardly  to  come  as  an  organized  body  to  the 
rescue  of  Dr.  Malchow  or  to  demand  a  repeal  or  amendment 
of  the  law  which  made  this  outrage  possible. 

DR.   KIME   AND  THE   IOWA    MEDICAL   JOURNAL. 

A  very  few  years  ago,  Dr.  Kime,  the  editor  of  the  Iowa 
Medical  Journal,  was  convicted  of  obscenity.  He  was  a  phy- 
sician of  high  standing  and  a  trustee  of  a  medical  college,  in 
which  a  few  young  rowdy  students  were  apparently  endeavor- 
ing to  drive  out  the  women  students.  A  protest  to  the  college 
authorities  resulted  only  in  a  two  weeks'  suspension.  On 
further  complaint,  instead  of  protecting  the  women  in  their 
equal  right  to  study  medicine  under  decent  conditions,  the 
authorities  excluded  women  altogether  from  the  medical  school. 
Filled  with  indignation,  Dr.  Kime  reiterated  his  protest,  and 
gave  publicity  to  some  of  the  methods  of  persecution,  includ- 

19U.  S.  v.  Burton,   142  F.  R.  57,  C.  C.  A. 

69 


OBSCENE   LITERATURE   AND    CONSTITUTIONAL    LAW. 

ing  an  insulting  prescription  which  appeared  on  the  blackboard 
where  all  the  class  could  see  it.  In  his  Medical  Journal  he 
wrote:  "We  had  thought  to  withhold  this  prescription,  owing 
to  its  extreme  vulgarity,  but  we  believe  it  our  duty  to  show 
the  condition  exactly  as  it  exists,  and  let  each  physician  judge 
for  himself  as  to  the  justness  of  the  protest  filed."  Then  fol- 
lowed the  "  obscene  "  prescription,  the  obscenity  of  which  con- 
sisted wholly  in  the  use  of  one  word  of  double  meaning. 

For  this  he  was  arrested,  and  although  supported  by  all 
four  daily  papers  of  his  home  city,  by  the  clergy  of  all  denom- 
inations, the  presidents  of  the  Y.  M.  C.  A.,  the  W.  C.  T.  U., 
and  the  Western  Society  for  the  Suppression  of  Vice,  and  the 
Society  for  the  Promotion  of  Social  Purity,  he  was  convicted, 
branded  as  a  criminal  and  fined.  Judged  by  the  absurd  judi- 
cial tests  of  obscenity  which  are  always  applied,  the  conviction 
was  unquestionably  correct. 

"STUDIES  IN  THE  PSYCHOLOGY  OF  SEX." 
In  England,  under  a  law  just  like  our  own  in  its  descrip- 
tion of  what  is  prohibited,  Dr.  Havelock  Ellis'  "Studies  in  the 
Psychology  of  Sex,"  I  believe  have  been  wholly  suppressed  as 
obscene.  These  studies  are  so  exhaustive  and  collect  so  much 
original  and  unusual  information  that  they  mark  an  entirely 
new  epoch  in  the  study  of  sexual  science.  The  German  edi- 
tion of  this  very  superior  treatise  is  denied  admission  into  the 
United  States,  to  protect  the  morals  and  perpetuate  the  ig- 
norance of  the  German-American  physicians.  Futhermore,  no 
one  can  doubt  that  their  exclusion  is  in  strict  accord  with  the 
letter  of  the  law,  as  the  word  "obscene"  is  now  interpreted, 
or  interpolated,  through  the  judical  "tests"  of  obscenity. 

That  scientifically  absurd  test  is  decisive  even  though  ap- 
plied to  a  scholarly  treatise  upon  sex,  circulated  only  within 
the  medical  profession,  for  the  statute  makes  no  exception 
in  favor  of  medical  men.  An  impartial  enforcement  of  the 
letter  of  the  law,  as  the  word  "obscene"  is  now  interpreted, 
would  entirely  extirpate  the  scientific  literature  of  sex.  So 
deeply  have  the  judges  been  impressed  with  this  possible  in- 
iquity, that  by  dictum,  quite  in  excess  of  their  proper  power, 
they  have  made  a  judicial  amendment  of  the  statute,  excepting 
from  its  operation  books  circulated  only  among  physicians. 
Such  judicial  legislation  of  course  is  made  under  the  pretense 
of  "statutory  interpretation"  and  involves  the  ridiculous  prop- 
osition that  a  book  which  is  criminally  obscene  if  handed  to  a 

70 


ETIOLOGY   AND   DEVELOPMENT    OF   OUR    CENSORSHIP. 

layman,  changes  its  character  if  handed  to  a  physician.  It  as- 
sumes that  a  scientific  knowledge  of  sex  is  dangerous  to  the 
morals  of  all  those  who  do  not  use  the  knowledge  as  a  means 
of  making  money  in  the  practice  of  medicine,  and  that  it  be 
comes  a  moral  force,  when,  and  only  when,  thus  employed  for 
pecuniary  gain.  To  send  to  "purity  workers"  the  standard 
scientific  literature  of  sex  is  a  crime.  Even  such  persons  can- 
not be  trusted  to  have  accurate  information.  Public  morals 
demand  their  ignorance.  The  suppression  of  the  American 
edition  of  "Studies  of  the  Psychology  of  Sex"  only  awaits 
the  concurrence  of  caprice  between  some  fool  reformer  and 
a  stupid  jury  and  judge.  The  same  statutory  words  which 
furnished  a  conviction  in  England,  and  here  are  adequate  to 
exclude  the  German  edition,  will  sooner  or  later  determine 
the  suppression  of  the  American  edition. 

Thus  far  we  have  exhibited  a  few  of  the  matters  which  can 
be  and  have  been  suppressed  under  our  present  mysterious 
criminal  law  against  "obscene"  literature.  More  will  be  said 
upon  this  matter  when  we  come  to  study  the  relation  of  our 
compulsory  sex-ignorance  to  insanity  and  when  we  come  to 
study  the  varieties  of  official  modesty. 

"HUMAN  SEXUALITY." 

An  attempt  was  made  to  suppress  another  most  useful 
book,  which  bears  this  title  page:  "Human  Sexuality — A 
Medico-Literary  Treatise,  on  the  Laws,  Anomalies,  and  Rela- 
tions of  Sex,  with  Especial  Referance  to  Contrary  Sexual 
Desire.  By  J.  Richardson  Parke,  Sc.  B.,  Ph.  G.,  M.  D.,  late 
Acting  Assistant  Surgeon,  U.  S.  Army."  In  Aug.,  1909,  in 
Philadelphia  the  author  of  this  valuable  book  was  arrested 
for  having  sent  it  through  the  mails.  The  book  is  a  large 
volume  of  nearly  500  pages  of  useful  scientific  matter.  It 
received  very  high  praise  from  medical  journals  and  prominent 
physicians. 

An  author,  writing  upon  the  pathology  of  the  lungs,  may 
properly  and  advantageously  lighten  up  his  text  by  a  few 
humorous  anecdotes  about  the  "one  lungers."  Dr.  Parke  thought 
he  had  a  similar  privilege,  although  writing  about  sex,  and 
because  he  related  a  few  stories,  such  as  he  believed  any 
physician  might  properly  tell  another,  he  furnished  the  official 
prudes  a  pretext  for  trying  to  put  him  in  jail.  He  was  arrest- 
ed and  bound  over  to  await  the  action  of  the  Grand  Jury. 
Fortunately,  the  matter  seems  to  have  come  before  reasonably 

80 Albany  Law  Journal,  Aug.,  1908;  Freedom  of  the  Press  and  "Obscene" 
Literature. 

71 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

sane  jurors,  who  refused  to  find  an  indictment.  The  dis- 
tinguished author  received  much  unpleasant  notoriety,  was 
put  to  much  personal  inconvienience  and  expense,  only  to  get 
a  "vindication"  which  is  not  necessarily  binding  upon  either 
the  Post  Office  Department  or  any  other  Grand  Jury,  or 
Court,  and  all  because  ours  has  ceased  to  be  a  Government 
according  to  "Law,"  when  it  comes  to  determining  what  are 
the  criteria  of  guilt  if  the  question  of  "obscenity"  is  involved. 

SUGGESTIONS  OF  THE  DEPEW  BOARD  OF  HEALTH 

Dr.  George  N.  Jack  is  the  Health  Physician  of  the  Board 
of  Health  for  Depew.  '^ike  many  another  more  foolish  person, 
Dr.  Jack  and  the  Board  of  Health  thought  this  a  free  country 
in  which  a  man  not  intending  to  deceive  but  meaning  to  help 
mankind  might  proclaim  that  which  he  believed  to  be  the 
truth.  Accordingly,  Dr.  Jack  prepared  a  paper  which  was 
read  and  adopted  at  a  meeting  of  the  Depew  Board  of  Health, 
Feb.  3rd,  1909.  This  paper  was  published  for  free  distribution 
under  the  title:  '"Suggestions  adopted  by  the  Depew  Board 
of  Health  for  the  Prevention  of  Sickness,  Corruption,  or 
Crime,  and  as  an  Evolutionary  aid  to  Humanity."  Of  course, 
this  paper  dealt  largely  with  sexual  vices.  Since  unto  the 
lewd  all  is  lewd,  Dr.  Jack  was  promptly  arrested  for  circu- 
lating "obscene"  literature,  through  the  mails.  At  the  time 
of  writing  this  his  case  has  not  been  disposed  of. 

FIELD-MUSEUM    IMPORTATIONS 

About  April  n,  1909,  the  newspapers  announced  that 
pictures  and  manuscripts  collected  in  China  by  Professor  Ber- 
thold  Laufer  of  Columbia  University,  and  for  the  Field  Mu- 
seum of  Chicago,  had  been  seized  by  Collector  of  Customs 
Ames,  because  of  their  obscenity.  It  seems  the  seizure  was  made 
in  Oct.  1908,  and  the  fact  kept  from  the  public.  The  news 
item  continues  thus:  "At  that  time,  United  States  District 
Judge  Landis  listened  to  arguments  in  chambers.  It  was 
admitted  that  the  importation  of  the  collection  constituted 
a  technical  violation  of  the  law,  but  it  was  likewise  admitted 
that  the  collection  formed  an  essential  basis  for  scientific 
investigation.  Judge  Landis  stated  that  he  had  no  doubt  the 
photographs,  paintings,  manuscripts,  etc.,  were  brought  into 
this  country  for  a  perfectly  proper  purpose,  but  he  saw  no 
way,  without  a  technical  violation  of  the  law,  of  releasing 
them." 

Subsequently  the  judge  decided  to  permit  the  entry  of 

72 


ETIOLOGY    AND   DEVELOPMENT    OF   OUR    CENSORSHIP. 

this  valuable  material.  Thus  we  have  arrived  at  the  stage 
where  the  dissemination  of  any  of  the  material  of  sexual 
science  is  a  crime,  and  it  is  the  function  of  a  Federal  Judge, 
not  to  enforce  the  law  impartially,  but  to  say  arbitrarily  who 
shall  go  unscathed. 

It  is  so  long  ago  that  we  have  both  forgotten  and  neglected 
the  truth  expressed  by  the  Federal  Supreme  Court  in  these 
words:  "It  would  certainly  be  dangerous  if  the  legislature 
could  set  a  net  large  enough  to  catch  all  possible  offenders 
and  leave  it  to  the  courts  to  step  inside  and  say  who  could  be 
rightly  detained,  and  who  should  be  set  at  large.  This  would 
to  some  extent  substitute  the  judicial  for  the  legislative  branch 
the  government."  J 

This  then,  is  a  partial  record  of  useful  things  coming  under 
the  ban  of  our  censorship  of  literature.  Some  other  books  as 
valuable  as  the  best  of  those  which  have  been  herein  men- 
tioned, I  can  not  speak  of,  because  the  authors  and  publishers 
prefer  that  no  mention  should  be  made  of  the  fact.  The 
most  injurious  part  of  this  censorship,  however,  lies  not  in 
the  things  that  have  been  suppressed,  as  against  the  ven- 
turesome few  who  dare  to  take  a  chance  on  the  censorship, 
but  rather  on  the  innumerable  books  that  have  remained  un- 
written because  modest  and  wise  scientists  do  not  care  to 
spend  their  time  in  taking  even  a  little  chance  of  coming 
into  conflict  with  an  uncertain  statute,  arbitrarily  administered 
by  laymen  to  the  medical  profession,  in  which  profession  are 
many  not  over-wise  and  sometimes  fanatical  zealots  in  the 
interest  of  that  ascetism  which  is  the  crowning  evil  of  the 
theology  of  sex. 

21U.  S.  v.  Reese,  92  U.  S.  291-221. 


73 


CHAPTER  V. 

THE  REASONS  UNDERLYING  OUR  CONSTITUTION- 
AL GUARANTEE  OF  A  FREE  PRESS,  APPLIED 
TO  SEX-DISCUSSION.1 

Arguments  which  deal  with  the  inexpediency  of  abridging 
freedom  of  speech  and  of  the  press  necessarily  restate  the 
considerations  which  moved  the  framers  of  our  constitutions 
to  prohibit  such  abridgment  and  therefore  exhibit  to  us  that 
conception  of  freedom  which  they  intended  to  perpetuate. 
It  follows  from  this  that  all  argument  which  concerns 
itself  with  a  consideration  of  the  inexpediency  of  abridging 
intellectual  freedom,  unavoidably  illuminates  the  whole 
problem  of  a  judicial  interpretation  of  our  constitutional  guar- 
antee of  an  unabridged  freedom  of  speech  and  of  the  press. 

Only  a  few  decades  ago,  the  mighty  governed  the  many, 
through  cunning,  strategy,  and  compulsory  ignorance.  A  lay 
citizen  was  punished  by  law,  if  he  presumed  critically  to  dis- 
cuss politics,  officials,  slave  emancipation,  astronomy,  geology, 
or  religion.  To  teach  our  African  slaves  to  read,  or  to  circu- 
late abolitionist  literature,  was  in  some  States  a  crime,  because 
such  intelligence  conduced  to  an  "immoral  tendency"  toward 
insurrection.  To  have  the  Bible  in  one's  possession  has  also 
been  prohibited  by  law,  because  of  the  "immoral  tendency" 
toward  private  judgments,  which  general  reading  of  it  might 
induce. 

One  by  one  the  advocates  of  mystery  and  blind  force  have 
surrendered  to  the  angels  of  enlightenment,  and  every  enlarge- 
ment of  opportunity  for  knowledge  has  been  followed  by  the 
moral  elevation  of  humanity.  Only  in  one  field  of  thought 
do  we  still  habitually  assume  that  ignorance  is  a  virtue,  and 
enlightenment  a  crime.  Only  upon  the  subject  of  sex  do  we 
by  statute  declare  that  artificial  fear  is  a  safer  guide  than  in- 
telligent self-reliance,  that  purity  can  thrive  only  in  conceal- 

1Revised  from  Liberal  Review,  Aug.  and  Sept.,  1906. 

74 


UNDERLYING   CONSTITUTIONAL   GUARANTEE   OF   FREE    PRESS. 

ment  and  ignorance,  and  that  to  know  all  of  one's  self  is 
dangerous  and  immoral.  Here  only  are  we  afraid  to  allow 
truth  to  be  contrasted  with  error.  The  issue  is,  shall  we  con- 
tinue thus  to  fear  full  and  free  discussion  of  sex  facts  and  sex 
problems?  Does  the  constitution  permit  the  suppression  of 
such  discussion?  Later  this  will  be  thoroughly  discussed. 

The  first  question  to  be  answered  is,  why  discuss  the  sub- 
ject of  sex  at  all?  There  are  those  who  advise  us  to  ignore  it 
entirely,  upon  the  theory  that  the  natural  impulse  is  a  suffi- 
cient guide.  To  this  it  may  be  answered  that  all  our  sex  activi- 
ties cannot  be  subjected  to  the  constant  and  immediate  con- 
trol of  the  will.  We  cannot  ignore  sex  by  merely  willing  to 
do  so.  Our  attention  is  unavoidably  forced  upon  the  sub- 
ject, by  conditions  both  within  and  without  ourselves.  That 
we  may  deceive  ourselves  in  this  particular  is  possible ;  that  we 
all  can  and  many  do  lie  about  it  is  certain. 

Without  sexual  education,  we  cannot  know  whether  we  are 
acting  under  a  healthy  or  a  diseased  impulse.  It  is  known  to 
the  psychologist  that  many  are  guilty  of  vicious  and  injurious 
sexual  practices,  without  being  in  the  least  conscious  of  the 
significance  of  what  they  are  doing.  Everywhere  we  see  hu- 
man wrecks  because  of  a  failure  to  understand  their  impulses, 
or  to  impose  intelligent  restraints  upon  them.  Many  become 
sexually  impotent,  hyperaesthetic,  or  perverted  by  gradual  proc- 
esses the  meaning  of  which  they  do  not  understand,  and  whose 
baneful  consequences  intelligence  would  enable  them  to  fore- 
see and  easily  avoid.  Since  individuals  will  not  go  to  a  phy- 
sician until  the  injury  is  accomplished  and  apparent,  it  fol- 
lows that  there  is  no  possible  preventive  except  general  in- 
telligence upon  the  subject.  At  present  the  spread  of  that 
knowledge  is  impeded  by  laws  and  by  a  prurient  prudery,  which 
together  are  responsible  for  the  sentimental  taboo  which  at- 
taches to  the  whole  subject.  The  educated  man  of  to-day 
measures  our  different  degrees  of  human  progress  by  the  quan- 
tity of  intelligence  which  is  used  in  regulating  our  bodily  func- 
tioning. No  reason  exists  for  making  sex  an  exception. 

THE  PHYSICAL  FOUNDATION  FOR  MORAL  HEALTH. 

To  those  who  accept  a  scientific  ethics,  moral  health  is 
measured  by  the  relative  degree  to  which  their  conduct  achieves 
physical  and  mental  health  for  the  race.  To  the  religious  mora- 
list, who  has  other  ends  in  view,  pathologic  sexuality  is  prob- 
ably the  greatest  impediment  to  the  practical  realization  of  his 

75 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

ideal  of  sexual  morality.  Everywhere  we  see  that  disease  is 
the  greatest  obstacle  to  moral  health.  From  either  point  of 
view,  it  follows  that  one  of  the  most  important  considerations 
in  all  purity  propaganda  must  be  the  diffusion  of  such  knowl- 
edge as  will  best  conduce  to  the  highest  physical  and  mental 
perfection.  This  seems  so  self  evident  that  we  necessarily  ask, 
Why  is  our  conduct  so  contrary? 

THE  DESIRE  TO  PERSECUTE. 

The  desire  to  persecute,  even  for  mere  opinion's  sake,  seems 
to  be  an  eternal  inheritance  of  humans.  We  naturally  and  as  a 
matter  of  course  encourage  others  in  doing  and  believing  what- 
ever for  any  reason,  or  without  reason,  we  deem  proper.  Even 
though  we  have  a  mind  fairly  well  disciplined  in  the  duty  of 
toleration,  we  quite  naturally  discourage  others,  and  feel  a 
sense  of  outraged  propriety,  whenever  they  believe  and  act 
in  a  manner  radically  different  from  ourselves.  Our  resent- 
ment becomes  vehement  just  in  proportion  as  our  reason  is 
impotent,  and  our  nerves  diseasedly  sensitive.  That  is  why  it 
is  said  that  "Man  is  naturally,  instinctively  intolerant  and  a 
persecutor." 

From  this  necessity  of  our  undisciplined  nature  comes  the 
stealthy  but  inevitable  recurrence  of  legalized  bigotry,  and  its 
rehabilitation  of  successive  inquisitions.  From  the  days  of 
pagan  antiquity  to  the  present  hour,  there  has  never  been  a 
time  or  country  wherein  mankind  could  claim  immunity  from 
all  persecution  for  intellectual  differences.  This  cruel  intoler- 
ance has  always  appealed  to  a  "sacred  and  patriotic  duty,"  and 
masked  behind  an  ignorantly  made  and  unwarranted  pretense 
of  "morality." 

"Persecution  has  not  been  the  outgrowth  of  any  one  age, 
nationality  or  creed;  it  has  been  the  ill-favored  progeny  of 
all."  Thus,  under  the  disguise  of  new  names  and  new  preten- 
sions, again  and  again  we  punish  unpopular,  though  wholly 
self-regarding,  non-moral  conduct ;  imprison  men  for  express- 
ing honest  intellectual  differences ;  deny  the  duty  of  toleration ; 
destroy  a  proper  liberty  of  thought  and  conduct;  and  always 
under  the  same  old  false  pretenses  of  "morality,"  and  "law 
and  order." 

Whenever  our  natural  tendency  toward  intolerance  is  re- 
inforced by  abnormally  intense  feelings,  such  as  diseased 
nerves  produce,  persecution  follows  quite  unavoidably,  because 

76 


ERLYIXG    CONSTITUTIONAL   GUARANTEE   OF   FREE   PRESS. 


the  intensity  of  associated  emotions  is  transformed  into  a  con- 
viction of  inerrancy.  Such  a  victim  of  diseased  emotions,  even 
more  than  others,  "knows  because  he  feels,  and  is  firmly  con- 
vinced because  strongly  agitated."  Unable  to  answer  logic- 
ally the  contention  of  his  friend,  he  ends  by  desiring  to  punish 
him  as  his  enemy.  Because  of  the  close  interdependence  of 
the  emotional  and  the  generative  mechanism,  it  is  probable 
that  unreasoned  moral  sentimentalizing  inducing  superstitious 
opinions  about  the  relation  of  men  and  women  will  be  the  last 
superstition  to  disappear. 

The  concurrence  of  many  in  like  emotions,  associated  with 
and  centered  upon  the  same  focus  of  irritation,  makes  the 
effective  majority  of  the  state  view  the  toleration  of  intel- 
lectual opponents  as  a  crime,  and  their  heresy,  whether  politi- 
cal, religious,  ethical  or  sexual,  is  denounced  as  a  danger  to 
civil  order,  and  the  heretic  must  be  judicially  silenced.  Thus 
all  bigots  have  reasoned  in  all  past  ages.  Thus  do  those  af- 
flicted with  our  present  sex-superstition  again  defend  their 
moral  censorship  of  literature  and  art. 

These  are  the  processes  by  which  we  always  become  in- 
capable of  deriving  profit  from  the  lessons  of  history.  That 
all  the  greatest  minds  of  every  age  believed  in  something  now 
known  to  be  false,  and  in  the  utility  of  what  is  now  deemed 
injurious  or  immoral,  never  suggests  to  petty  intellects  that 
the  future  generations  will  also  pity  us  for  having  entertained 
our  most  cherished  opinions. 

The  presence  of  these  designated  natural  defects,  which 
so  very  few  have  outgrown,  makes  it  quite  probable  that  the 
battle  for  intellectual  freedom  will  never  reach  an  end.  The 
few,  trained  in  the  duty  of  toleration,  owe  it  to  humanity  to 
re-state,  with  great  frequency,  the  arguments  for  mental  hos- 
pitality. Only  by  this  process  can  we  contribute  directly  to- 
ward the  mental  discipline  of  the  relatively  unevolved  masses, 
and  prepare  the  way  for  those  new  and  therefore  unpopular 
truths  by  which  the  race  will  progress.  The  absolute  liberty  of 
thought,  with  opportunity,  unlimited  as  between  adults,  for 
its  oral  or  printed  expression  is  a  condition  precedent  to  the 
highest  development  of  our  progressive  morality. 

Men  of  strong  passions  and  weak  intellects  seldom  see  the 
expediency  of  encouraging  others  to  disagree.  Thence  came 
all  of  those  terrible  persecutions  for  heresy,  witchcraft,  sedi- 
tion, etc.,  which  have  prolonged  the  midnight  of  superstition 

77 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

into  "dark  ages."  The  passionate  zeal  of  a  masterful  few  has 
always  made  them  assume  that  they  only  could  be  trusted  to 
have  a  personal  judgment  upon  moral  questions,  while  all 
others  must  be  coerced,  unquestioningly,  to  accept  them  upon 
authority,  "with  pious  awe  and  trembling  solicitude." 

THE  DANGERS  OF  PRIVATE  JUDGMENT. 

Such  egomania  always  resulted  in  the  persecution  of  those 
who  furnished  the  common  people  with  the  materials  upon 
which  they  might  base  a  different  opinion,  or  outgrow  their 
slave- virtues. 

One  of  Queen  Mary's  first  acts  was  an  inhibition  against 
reading  or  teaching  the  Bible  in  churches,  and  against  printing 
books.  In  1530,  the  king,  pursuant  to  a  memorial  of  the  House 
of  Commons,  issued  a  proclamation  requiring  every  person 
"which  hath  a  New  Testament  or  the  Old,  translated  into 
English  or  any  other  boke  of  Holy  Scripture,  so  translated, 
being  in  printe,  to  surrender  them  within  fifteen  days,  as 
he  will  avoyde  the  Kynge's  high  indignation  and  displeas- 
ure," which  meant  death. 

Another  and  similar  proclamation  was  issued,  covering  the 
New  Testament  and  writings  of  many  theologians.  The  act 
passed  in  the  3rd  and  4th  Edward  VI.,  repeated  this  folly.  So 
thousands  of  Bibles  were  burned  under  the  personal  super- 
vision and  benediction  of  priests  and  bishops,  because  of  the 
immoral  tendency  toward  private  judgment  involved  in  read- 
ing the  "Divine  Record."2 

Poor  William  Tyndale,  who  took  the  infinite  trouble  of 
translating  the  scriptures  into  English,  found  that  "his  New 
Testament  was  forthwith  burnt  in  London ;"  and  he  himself, 
after  some  years,  was  strangled  and  burnt  at  Antwerp. 

(1536).' 

So  now  we  have  many  who  likewise  esteem  it  to  be  of 
immoral  tendency,  for  others  than  themselves,  to  secure  such 
information  as  may  lead  to  a  personal  and  different  opinion 
about  the  physiology,  psychology^  hygiene,  or  ethics  of  sex, 
and  by  law  we  make  it  a  crime  to  distribute  any  specific  and 
detailed  information  upon  these  subjects,  especially  if  it  be  un- 
prudish  in  its  verbiage  or  advocate  unorthodox  opinions  about 
marriage  or  sexual  ethics.  This  is  repeating  the  old  folly  that 

2Vickers'  Martyrdom  of  Literature,  pp.  190,  225  to  227.  See  also  Paterson's 
Liberty  of  the  Press,  p.  50. 

•Books  Condemned  to  be  Burnt,  page  9. 

78 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE    PRESS. 

the  adult  masses  cannot  be  trusted  to  form  an  opinion  of  their 
own. 

The  "free"  people  of  the  United  States  cannot  be  al- 
lowed to  have  the  information  which  might  lead  to  a  change 
of  their  own  statute  laws  upon  sex. 

SUPPRESSING  TRUTH   FOR  EXPEDIENCY. 

There  will  always  be  those  thoughtless  enough  to  be- 
lieve that  truth  may  be  properly  suppressed  for  considerations 
of  expediency.  I  prefer  to  believe  with  Professor  Max  Miiller, 
that  "The  truth  is  always  safe,  and  nothing  else  is  safe" ; 
and  with  Drummond  that  "He  that  will  not  reason,  is  a  bigot ; 
he  that  cannot  reason,  is  a  fool,  and  he  that  dares  not  reason, 
is  a  slave" ;  and  with  Thomas  Jefferson  when  in  his  inaugu- 
ral address  he  wrote,  "Error  of  opinion  may  be  tolerated,  when 
reason  is  left  free  to  combat  it" ;  and  I  believe  these  are  still 
truisms  even  though  the  subject  is  sex. 

We  have  only  to  go  back  a  few  centuries  to  find  an  in- 
fluential clique  of  pious  men  trying  to  maintain  a  monopoly 
of  "truth."  Those  who  disputed  their  affirmations,  whether 
about  geology  or  theology,  were  promptly  beheaded  or  burnt. 
The  clerical  monopolists  denied  common  people  the  right,  not 
only  of  having  an  independent  judgment  as  to  the  significance, 
or  value,  or  truth  of  "holy  writ,"  but  even  denied  them  the 
right  to  read  the  book  itself,  because  it  would  tempt  them  to 
independent  judgment,  which  .might  be  erroneous,  and  thus 
make  them  "immoral." 

The  contents  and  the  interpretation  of  the  Bible,  together 
with  the  political  tyranny  founded  on  these,  must,  "with 
humble  prostration  of  intellect,"  be  unquestioningly  accepted. 
Those  who  disputed  the  self -constituted  mouthpieces  of  God 
were  promptly  killed.  And  now,  those  who,  without  "humble 
prostration  of  intellect,"  dispute  any  of  the  ready-made  igno- 
rance on  the  physiology,  hygiene  and  psychology  or  ethics  of 
sex,  are  promptly  sent  to  jail.  Yet  we  call  this  a  "free"  coun- 
try, and  our  age  a  "civilized"  one. 

By  the  same  appeal  to  a  misguided  expediency,  we  find 
that  only  a  few  years  ago  it  was  a  crime  to  teach  a  negro 
slave  how  to  read  or  write.  Education  would  make  him  doubt 
his  slave-virtues,  and  with  a  consciousness  of  the  injustice 
being  inflicted  upon  him,  he  might  disturb  the  public  order 
to  secure  redress.  So,  imparting  education  became  immoral, 

79 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

and  was  made  a  crime.  An  effort  was  made  to  make  it  a  crime 
to  send  anti-slavery  literature  through  the  mails  because  of  its 
immoral  tendency,  and  southern  postmasters  often  destroyed 
it  without  warrant  of  law,  thus  refusing  delivery  to  those  to 
whom  it  was  addressed. 

Within  the  past  century,  married  women  had  no  rights 
which  their  husbands  need  respect,  and  education  of  women 
was  made  impossible,  though  the  imparting  of  it  was  not 
penalized.  Now  they  may  acquire  an  education  about  every- 
thing, except  what  ought  to  be  the  most  important  to  them, 
namely:  A  scientific  knowledge  of  the  ethics,  physiology, 
hygiene,  and  psychology  of  sex.  To  furnish  them  with 
literature  of  the  highest  scientific  order,  even  though  true 
and  distributed  from  good  motives,  or  in  print  to  argue  for 
their  "natural  right  and  necessity  for  sexual  self-government," 
is  now  a  crime,  and  we  call  it  "obscenity"  and  "indecency." 

Formerly,  when  bigots  were  rampant  and  openly  domi- 
nant, the  old  superstition  punished  the  psychological  crime  of 
"immoral  thinking,"  because  it  was  irreligious,  and  it  was 
called  "sedition,"  "blasphemy,"  etc.  Under  the  present  verbal 
disguise,  the  same  old  superstition  punishes  the  psychological 
crime  of  immoral  thinking,  because  it  may  discredit  the  ethical 
claims  of  religious  asceticism,  and  now  we  call  it  "obscenity" 
and  "indecency."  What  is  the  difference  between  the  old  and 
the  new  superstition  and  persecution  ? 

Strange  to  say,  there  are  hundreds  of  thousands  of  the  un- 
churched, who,  for  want  of  clear  mental  vision  or  adequate 
moral  courage,  are  fostering  the  suppression  of  unconventional 
thinking,  and  justify  it,  upon  considerations  of  expediency. 

The  argument  against  the  expediency  of  truth  is  ever  the 
last  refuge  of  retreating  error,  a  weak  subterfuge  to  conceal 
a  dawning  consciousness  of  ignorance.  In  all  history,  one 
cannot  find  a  single  instance  in  which  an  enlargement  of  op- 
portunity for  the  propagation  of  unpopular  allegations  of  truth 
has  not  resulted  in  increased  good. 

"If  I  were  asked,  'What  opinion,  from  the  commencement 
of  history  to  the  present  hour,  had  been  productive  of  the 
most  injury  to  mankind?'  I  should  answer,  without  hesita- 
tion: 'The  inexpediency  of  publishing  sentiments  of  supposed 
bad  tendency.' '  It  is  this  infamous  opinion  which  has  made 
the  world  a  vale  of  tears,  and  drenched  it  with  the  blood  of 
martyrs. 

80 


UNDERLYING  CONSTITUTIONAL  GUARANTEE  OF  FREE  PRESS. 

THE  ABUSE  OF  FREEDOM. 

I  am  fully  mindful  of  the  fact  that  an  unrestricted  press 
means  that  some  abuse  of  the  freedom  of  the  press  will  result. 
However,  I  also  remember  that  no  man  can  tell  a  priori  what 
opinion  is  of  immoral  tendency.  I  am  furthermore  mindful 
that  we  cannot  argue  against  the  use  of  a  thing,  from  the 
possibility  of  its  abuse,  since  this  objection  can  be  urged 
against  every  good  thing,  and  I  am  not  willing  to  destroy  all 
that  makes  life  pleasant.  Lord  Littleton  aptly  said:  "To 
argue  against  any  breach  of  liberty,  from  the  i11  use  that  may 
be  made  of  it,  is  to  argue  against  liberty  itself,  since  all  is 
capable  of  being  abused." 

Everyone  who  believes  in  the  relative  and  progressive  mo- 
rality of  scientific  ethics,  must  logically  believe  in  the  im- 
morality of  a  code  which  preaches  absolutism  in  morals  upon 
the  authority  of  inspired  texts,  instead  of  deriving  moral  pre- 
cepts from  natural,  physical  law.  But  that  is  no  warrant  for 
the  scientific  moralist  suppressing  the  teaching  of  religious 
morality,  as  inexpedient,  even  if  he  believed  it  to  be  so  and 
had  the  power.  Neither  can  the  religious  moralist  justify 
himself  in  the  suppression  of  the  opinions  of  his  scientific 
opponents.  It  is  alone  by  comparison  and  contrast  that  each 
perfects  his  own  system,  and  in  the  end  all  are  better  off  for 
having  permitted  the  disputation. 

No  argument  for  the  suppression  of  "obscene"  literature 
has  ever  been  offered  which,  by  unavoidable  implication,  will 
not  justify,  and  which  has  not  already  justified,  every  other 
limitation  that  has  ever  been  put  upon  mental  freedom.  No 
argument  was  ever  made  to  justify  intolerance,  whether  po- 
litical, theological,  or  scientific,  which  has  not  been  restated 
in  support  of  our  present  sex  superstitions  and  made  to  do 
duty  toward  the  suppressing  of  information  as  to  the  physi- 
ology, psychology,  or  ethics  of  sex.  All  this  class  of  argu- 
ments that  have  ever  been  made,  have  always  started  with  the 
false  assumption  that  such  qualities  as  morality  or  immorality 
could  belong  to  opinions,  or  to  a  static  fact. 

Because  violence  is  deemed  necessary  to  prevent  a  change, 
or  the  acquisition  of  an  opinion  concerning  the  hygiene, 
physiology  or  ethics  of  sex,  we  must  infer  that  those  who 
defend  the  press  censorship  are  unconsciously  claiming  om- 
niscient infallibility  for  the  present  sexual  intelligence.  If 
their  sex  opinions  were  a  product  of  mere  fallible  reason, 

81 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

they  would  not  feel  the  desirability,  the  need  or  duty  to  sup- 
press rational  criticism.  By  denying  others  the  right  of  pub- 
lishing either  confirmation  or  criticism,  they  admit  that  their 
present  opinions  are  a  matter  of  superstition  and  indefensible 
as  a  matter  of  reason.  To  support  a  sex  superstition  by  law 
is  just  as  reprehensible  as,  in  the  past,  it  was  to  support  the, 
now  partially  exploded,  governmental,  scientific  and  theological 
superstitions,  by  the  same  process.  This,  be  it  remembered, 
was  always  done  in  the  name  of  "morality,"  "law  and  order," 
etc. 

WILL  TRUTH,  CRUSHED,  RISE  AGAIN ? 

There  may  still  be  those  who  argue  that  the  persecutors 
of  Christians  were  right,  because  the  persecution  of  an  advo- 
cate is  a  necessary  ordeal  through  which  his  truth  always 
passes  successfully ;  legal  penalties,  in  the  end,  being  power- 
less against  the  truth,  though  sometimes  beneficially  effective 
against  mischievous  error. 

It  may  be  a  historical  fact  that  all  known  truths,  for  a 
time,  have  been  crushed  by  the  bigot's  heel,  but  this  should 
not  make  us  applaud  his  iniquity.  It  is  an  aphorism  of  un- 
balanced optimists,  that  truth  crushed  to  earth  will  always 
rise.  Even  if  this  were  true,  it  must  always  remain  an  un- 
provable  proposition,  because  it  postulates  that  at  every  par- 
ticular moment  we  are  ignorant  of  all  those  suppressed  truths, 
not  then  resurrected,  and  since  we  do  not  know  them,  we 
cannot  prove  that  they  ever  will  be  resurrected.  It  would 
be  interesting  to  know  how  one  could  prove  that  an  unknown 
truth  of  past  suppression  is  going  to  be  rediscovered,  or  that 
the  conditions  which  alone  once  made  it  a  cognizable  fact 
will  ever  again  come  into  being.  And  yet  a  knowledge  of 
it  might  have  a  very  important  bearing  on  some  present  con- 
troversy of  moment. 

Surely,  many  dogmas  have  been  wholly  suppressed  which 
were  once  just  as  earnestly  believed  to  be  as  infallibly  true 
as  some  that  are  now  accepted  as  inspired  writ.  Just  a  little 
more  strenuosity  in  persecution  would  have  wiped  out  all 
Christians,  if  not  Christianity  itself.  How  can  we  prove  that 
all  the  suppressed,  and  now  unknown,  dogmas  were  false?  If 
mere  survival  after  persecution  is  deemed  evidence  of  the  in- 
errancy of  an  opinion,  then  which  of  the  many  conflicting  opin- 
ions, each  a  survivor  of  persecution,  are  unquestionably  true, 

82 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF    FREE    PRESS. 

and  how  is  the  choice  to  be  made  from  the  mass?  Is  it  not 
clear  that  neither  a  rediscovery,  nor  a  survival  after  persecu- 
tion, can  have  any  special  relation  to  truth  as  such?  If  it  is, 
then  let  us  unite  to  denounce  as  an  unprovable  hallucination 
the  statement  that  truth  crushed  to  earth  will  rise  again. 

The  abettors  of  persecution  are  more  damaged  than  those 
whom  they  deter  from  expressing  and  defending  unpopular 
opinions,  since,  as  between  these,  only  the  former  are  de- 
priving themselves  of  the  chief  means  of  correcting  their  own 
errors.  But  the  great  mass  of  people  belong  neither  to  the 
intellectual  innovators,  nor  to  their  persecutors.  The  great 
multitude  might  be  quite  willing  to  listen  to  or  read  uncon- 
ventional thoughts  if  ever  permitted,  amid  opportunity,  to 
exercise  an  uncoerced  choice 

FALSE  ANALOGY. 

Much  of  the  justification  for  intolerance  derives  its  au- 
thority from  false  analogies,  wrongfully  carried  over  from 
physical  relations  into  the  realm  of  the  psychic. 

Thus  some  argue  that  because,  by  laws,  we  protect  the 
incompetent  against  being  (unconsciously)  infected  with  con- 
tagious disease,  therefore  the  state  should  also  protect  them 
(even  though  mature  and  able  to  protect  themselves  by.  mere 
inattention)  against  the  literature  of  infectious  moral  poison. 
Here  a  figure  of  speech  is  mistaken  for  an  analogy.  "Moral 
poison"  exists  only  figuratively  and  not  literally  in  any  such 
sense  as  strychnine  is  a  poison. 

Ethics  is  not  one  of  the  exact  sciences.  Probably  it  never 
will  be.  Until  we  are  at  least  approximately  as  certain  of  the 
existence  and  tests  of  "moral  poison,"  as  we  are  of  the  physical 
characteristics  and  consequences  of  carbolic  acid,  it  is  folly 
to  talk  of  "moral  poison"  except  as  a  matter  of  poetic  license. 

In  the  realm  of  morals  no  age  has  ever  shown  an  agree- 
ment, even  among  its  wisest  and  best  men,  either  as  to  what 
is  morally  poisonous,  or  by  what  test  it  is  to  be  judged  as 
morally  deadly.  Moral  concepts  are  a  matter  of  geography 
and  evolution.  The  morality  of  one  country  or  age  is  viewed 
as  the  moral  poison  of  another  country  or  age.  The  defended 
morality  of  one  social  or  business  circle  is  deemed  the  im- 
morality of  another.  The  ideals  which  attach  to  one  man's 
God,  are  those  of  another  man's  devil.  Furthermore,  our 
best  scientific  thinkers  concur  in  the  belief  that  all  morality 

83 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

is  relative  and  progressive,  whereas  numerous  other  men  deem 
a  part  or  all  of  our  conduct  to  be  per  se  moral  or  immoral. 
Some  deem  the  source  of  authority  in  matters  of  morals  to 
be  God,  as  his  will  is  manifested  through  the  revelations  or 
prophets  of  his  particular  church,  or  that  interpretation  of 
them  which  some  particular  branch  of  some  particular  church 
promulgates.  Others  find  morality  only  in  the  most  health- 
giving  adjustment  to  natural  law,  and  still  others  find  their 
authority  in  a  conscience,  unburdened  either  with  supernatural 
light  or  worldly  wisdom.  Only  the  generous  exercise  of  the 
most  free  discussion  can  help  us  out  of  this  chaos. 

PROGRESS  BY  KNOWLEDGE  OF  NATURAL  LAW. 
Philosophers  tell  us  that  life  is  "the  continuous  adjustment 
of  internal  relations  to  external  relations."  The  use  of  con- 
scious effort  toward  the  achievement  of  the  fullest  life,  through 
our  most  harmonious  conformity  to  natural  laws,  is  the  es- 
sential distinction  between  the  human  and  other  animals. 

Observance  of  natural  law  is  the  unavoidable  condition  of 
all  life,  and  a  knowledge  of  those  laws  is  a  condition  precedent 
to  all  effort  for  securing  well-being,  through  conscious  adjust- 
ment to  them.  It  follows  that  an  opportunity  for  an  acquain- 
tance with  nature's  processes,  unlimited  by  human  coercion,  is 
the  equal  and  inalienable  right  of  every  human  being,  because 
essential  to  his  life,  liberty,  and  pursuit  of  happiness.  No 
exception  can  be  made  for  the  law  of  our  sex  nature. 

It  also  follows  that  in  formulating  our  conception  of  what 
is  the  law  of  nature,  and  in  its  adjustment  or  application  by 
us  to  our  infinitely  varied  personal  constitutions,  each  sane 
adult  human  is  the  sovereign  of  his  own  destiny  and  never 
properly  within  the  control  of  any  other  person,  until  some  one, 
not  an  undeceived  voluntary  participant,  is  directly  affected 
thereby  to  his  injury. 

The  laws  for  the  suppression  of  "obscene"  literature,  as 
administered,  deny  to  adults  the  access  to  part  of  the  alleged 
facts  and  arguments  concerning  our  sex  nature,  and  therefore 
are  a  violation  of  the  above  rules  of  right  and  conduct. 

MORAL  ADVANCE  THROUGH  CRITICISM. 
We  all  believe  in  intellectual  and  moral  progress.  There- 
fore, whatever  may  be  the  character  or  subject  of  a  man's 
opinions,  others  have  the  right  to  express  their  judgments 
upon  them,  to  censure  them,  if  deemed  censurable  or  turn 
them  to  ridicule,  if  deemed  ridiculous.  If  such  right  is  not 

84 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE   PRESS. 

protected  by  law,  we  should  have  no  security  against  the 
exposition  or  perpetuity  of  error,  and  therefore  we  should 
hamper  progress. 

It  follows  that  the  believer  in  a  personal  God  or  in  the 
Trinity,  the  Mormon  with  his  "Adam-God,"  the  Agnostic  with 
his  "Unknowable,"  the  Christian-scientist  with  his  impersonal 
"All  mind  and  all  love"  God,  the  Unitarian  with  his  "Purpose- 
ful Divine  Immanence/'  the  Theosophist  with  his  godless  "Nir- 
vana," and  the  Atheist,  all  have  an  equal  right  to  vie  with 
one  another  for  public  favor  and,  incidentally,  to  censure  or 
ridicule  any  crudities  which  they  may  believe  they  see  in  any 
or  all  rival  conceptions. 

It  is  only  by  recognition  and  exercise  of  such  a  liberty 
that  humanity  has  evolved  from  the  primal  sex- worship 
through  the  innumerable  phases  of  nature  worship  to  our 
present  relatively  exalted  religious  opinion.  Even  though  we 
reject  all,  or  all  but  one,  of  the  numerous  modern  anthropo- 
morphic and  deistic  conceptions  of  God,  we  must  still  admit 
that  each  of  these  is  based  upon  a  more  enlightened  and  en- 
larged conception  of  the  Universe  and  man's  relation  to  it, 
than  can  possibly  be  implied  in  the  worship  of  the  phallus. 
Thus  liberty  of  thought  and  of  its  expression  has  been  and 
will  continue  to  be  the  one  indispensable  condition  to  the  im- 
provement of  religions. 

If  we  are  not  thus  far  agreed  as  to  the  equal  moral  rights 
of  each,  then  which  one  has  less  right  than  the  rest?  It  is 
beyond  question  that  the  solitary  man  has  an  unlimited  right 
of  expressing  his  opinion,  since  there  is  no  one  to  deny  him 
the  right.  With  the  advent  of  the  second  man  surely  he 
still  has  the  same  right  with  the  consent  of  that  second  man. 
How  many  more  persons  must  join  the  community  before 
they  acquire  the  moral  warrant  for  denying  the  second  man 
the  right  and  the  opportunity  to  listen  to,  or  to  read,  anything 
the  other  may  speak  or  write,  even  though  the  subject  be 
theology  or  sex-morality?  By  what  impersonal  standard  (not 
one  based  merely  upon  individual  preferences)  shall  we  ad- 
judge the  forfeiture  of  such  individual  rights,  if  forfeiture 
is  to  be  enforced  by  a  limitation  ? 

If  such  impersonal  standard  cannot  be  furnished  then 
the  argument  must  proceed  as  follows:  If  all  disputants  have 
the  equal  right  to  question  and  deride  the  conceptions  of  all 
the  rest  as  to  the  existence,  nature  or  knowableness  of  their 
respective  God,  then  they  have  an  equal  right  to  question  the 

85 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

divine  origin  or  interpretation  of  that  which  others  believe  to 
be  divine  revelation. 

If  men  have  a  right  to  cast  doubt  upon  the  source  and 
fact  of  divine  revelation,  then,  of  course,  they  must  have  an 
equal  right  to  discredit  that  which  others  believe  to  have 
been  taught  by  such  divine  revelation,  even  though  the  sub- 
ject be  the  relation  of  the  sexes. 

More  specifically,  that  means  this:  The  Catholic  priest 
may  advocate,  as  others  deny,  the  superior  morality  of  his 
celibacy ;  the  one  may  argue  for,  and  the  other  against,  the 
compatibility  of  the  best  health  and  life-long  continence,  and 
to  this  end  either  may  adduce  all  the  evidence,  historical,  ex- 
perimental or  scientific,  which  is  deemed  material ;  the  mar- 
riage purists  may  argue  for,  and  others  against,  the  superior 
morality  of  having  sexual  relation  only  for  the  purpose  of 
procreation ;  the  Bible  Communist  of  Oneida  may  advocate,  as 
others  deny,  the  superior  morality  of  "free  love" ;  the  Episco- 
palians and  Ethical  Culturists,  may  advocate,  as  others  deny, 
the  superior  morality  of  indissoluble  monogamy ;  the  Agnostic 
or  Liberal  Religionist  may  advocate,  and  others  may  deny,  the 
superior  morality  of  easy  divorce ;  the  Utilitarian  may  advo- 
cate, as  others  deny,  the  superior  morality  of  stirpiculture  with 
or  without  monogamic  marriage;  the  Mormon  may  advocate, 
as  others  deny,  the  superior  morality  of  polygamy,  etc.,  etc. 

I  assume  for  the  present,  and  for  the  sake  of  the  present 
argument  only,  that  they  do  not  advocate  the  violation  of  ex- 
isting marriage  laws,  but  limit  their  demand  and  argument  to 
a  repeal  or  amendment  of  those  laws,  so  as  to  make  them  con- 
formable to  their  respective  ideals.  Under  present  laws  nu- 
merous persons  have  been  arrested  for  making  arguments  in 
favor  of  some  of  the  foregoing  propositions,  while  advocates 
of  the  contrary  view  have  gone  on  unmolested. 

Those  who  hold  to  any  one  of  these  ideals  necessarily 
believe  all  others  to  be  of  immoral  tendency;  and  it  seems 
to  me  that  ridicule,  fact  and  argument,  unrestricted  as  to 
adults,  are  the  only  means  by  which  the  race  can  secure  that 
progressive  clarification  of  moral  vision  which  is  essential  to 
higher  moral  development. 

The  vaunted  morality  of  one  age  is  the  despised  super- 
stition and  barbarism  of  succeeding  ages.  Thus  we  have 
proceeded,  as  far  as  our  sexual  morality  is  concerned,  through 
irresponsible,  indiscriminate  promiscuity,  group  marriage, 
female  slavery,  the  sacred  debauchery  of  sex-worship,  poly- 
andry, polygamy,  the  abhorrent  ideals  of  ascetics  and  sex- 

86 


UNDERLYING   CONSTITUTIONAL   GUARANTEE   OF   FREE    PRESS. 

perverts,  to  our  present  standards,  and  the  course  of  moral 
evolution  is  not  yet  ended. 

Since,  then,  the  very  superiority  of  our  present  morality 
is  due  to  the  liberty  of  thinking  and  of  exchanging  thoughts, 
how  absurd  and  outrageous  it  is  now  to  impair  or  destroy  the 
very  basis  upon  which  it  rests,  and  upon  which  must  depend 
the  further  development  of  our  progressive  morality! 

Since  advancement  in  the  refining  of  our  ethical  concep- 
tions is  conditioned  upon  experimentation  and  the  dissemina- 
tion of  its  observed  results,  it  follows  that  the  most  immoral 
of  present  tendencies  is  that  which  arrests  moral  progress 
by  limiting  the  freedom  of  speech  and  press.  When  viewed 
in  long  perspective,  it  also  follows  that  we  must  conclude  that 
the  most  immoral  persons  of  our  time  are  those  who  are 
now  successfully  stifling  discussion,  and  restricting  the  spread 
of  sexual  intelligence,  because  they  are  most  responsible  for 
impeding  moral  progress,  as  to  the  relations  of  men  and 
women. 

Those  who  in  these  particulars  deny  a  freedom  of  speech 
and  press  and  the  correlative  right  to  hear,  unlimited  as  to 
all  sane  adults,  by  their  very  act  of  denial  exercise  a  right 
which  they  would  suppress  in  others.  The  true  believer  in 
equality  of  liberty  allows  others  the  right  to  speak  against 
free  speech,  though  he  may  not  be  so  hospitable  as  to  its 
actual  suppression.  No  man  truly  believes  in  liberty  who  is 
unwilling  to  defend  the  right  of  others  to  disagree  with  him, 
even  about  free-love,  polygamy  or  stirpiculture. 

If  our  conceptions  of  sexual  morality  have  a  rational  foun- 
dation, then  they  are  capable  of  adequate  rational  defense, 
and  there  is  no  need  for  legislative  suppression  of  discussion. 
If  our  sex  ethics  will  not  bear  critical  scrutiny  and  discussion, 
then  to  suppress  such  discussion ,  is  infamous,  because  it  is 
a  legalized  support  of  error.  In  either  case  the  freest  pos- 
sible discussion  is  a  necessary  condition  of  the  progressive  elim- 
ination of  error. 

OUR  OPINIONS  ARE  INVOLUNTARY. 

No  man  can  help  believing  that  which  he  believes.  Belief 
is  not  a  matter  of  volition.  No  man,  by  an  act  of  will,  can  make 
himself  believe  that  twice  two  are  six.  He  may  say  it,  but 
he  cannot  believe  it,  that  is,  he  cannot  acquire  a  correspond- 
ing concept.  No  man,  solely  by  an  act  of  will,  can  stop 
thinking.  No  man  can  tell  what  he  will  think  tomorrow,  nor 
arbitrarily  determine  what  he  will  think  next  year. 

87 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

If  there  still  remain  any  believers  in  the  free-will  super- 
stition, as  applied  to  matters  of  belief,  each  of  them  can,  by 
a  simple  test,  demonstrate  to  himself  the  impossibility  of  ar- 
bitrarily controlling  his  conviction.  Let  him,  solely  by  an 
uncaused  exercise  of  his  "free-will,"  abolish  his  belief  in  its 
existence,  and  substitute  the  conviction  that  a  man  in  his  men- 
tal life  is  a  mere  irresponsible  automaton.  Then,  having  firmly 
held  this  latter  conviction  for  just  ten  days,  let  him,  by  another 
uncaused  act  of  the  "free-will"  (which  then  he  does  not  be- 
lieve in),  restore  his  belief  in  its  existence.  Not  until  I  find  a 
sane  man  who  honestly  believes  that  he  has  performed  this,  to 
me  impossible  feat,  can  I  admit  that  the  existence  of  a  "free- 
will" as  applied  to  our  thought-products,  is  even  a  debatable 
question. 

"Free  will"  in  the  determination  of  one's  opinion  is  but 
a  special  phase  of  the  general  "free-will"  doctrine.  Those 
who,  in  spite  of  the  foregoing  suggestions,  continue  to  be- 
lieve in  the  lawlessness  of  the  intellect  and  their  own  ability 
to  believe  doctrines  without  evidence  or  against  what  to  them- 
selves seems  a  preponderance  of  the  evidence,  must  be  re- 
ferred to  the  scientific  literature  upon  the  subject.4 

Professor  Fiske,  in  his  Cosmic  Philosophy,  fully  considers 
and  answers  all  the  arguments  for  a  "lawlessness  of  volition" 
and  concludes  his  discussion  with  these  paragraphs: 

"From  whatever  scientific  standpoint  we  contemplate  the 
doctrine  of  lawlessness  of  volition,  we  find  that  its  plausible- 
ness  depends  solely  on  tricks  of  language.  The  first  trick  is 
the  personification  of  will  as  an  entity  distinct  from  all  acts 
of  volition ;  the  second  trick  is  the  ascription  to  this  entity 
of  'freedom,'  a  word  which  is  meaningless  as  applied  to  the 
process  whereby  feeling  initiates  action;  the  third  trick  is 
the  assumption  that  desires  or  motives  are  entities  outside  of 
a  person,  so  that  if  his  acts  of  volition  were  influenced  by 
them  he  would  be  robbed  of  his  freedom. 

"Whatever  may  be  our  official  theories,  we  all  practically 
ignore  and  discredit  the  doctrine  that  volition  is  lawless.' 
Whatever  voice  of  tradition  we  may  be  in  the  habit  of  echo- 
ing, we  do  equally,  from  the  earliest  to  the  latest  day  of  our 
self-conscious  existence,  act  and  calculate  upon  the  supposi- 
tion that  volition,  alike  in  ourselves  and  in  others,  follows 
invariably  the  strongest  motive. 

*Maudsley,  "Body  and  Mind,"  Part  I  ;  Herbert  Spencer,  "Principles  of  Psy- 
chology," Vol.  I,  pp.  495  to  613;  Ribot,  "Diseases  of  the  Will";  John  Fiske, 
"Cosmic  Philosophy/'  Vol.  II,  chap.  17;  "Universal  Illusion  of  Free  Will,"  by 
A.  Hamon. 

88 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE    PRESS. 

"Finally,  in  turning  our  attention  to  history,  we  have  found 
that  the  aggregate  of  thoughts,  desires  and  volitions  in  any 
epoch  is  so  manifestly  dependent  upon  the  aggregate  of 
thoughts,  desires  and  volitions  in  the  preceding  epoch,  that 
even  the  assertors  of  the  lawlessness  of  volition  are  forced  to 
commit  logical  suicide  by  recognizing  the  sequence.  Thus, 
whether  we  contemplate  volitions  themselves,  or  compare  their 
effects,  whether  we  resort  to  the  testimony  of  psychology  or 
to  the  testimony  of  history,  we  are  equally  compelled  to  admit 
that  law  is  co-extensive  with  all  orders  of  phenomena  and  with 
every  species  of  change. 

"It  is  hardly  creditable  to  the  character  of  the  present 
age  of  scientific  enlightenment  that  such  a  statement  should 
need  to  be  made,  or  that  twenty-six  pages  of  critical  argument 
should  be  required  to  illustrate  it. 

"To  many,  this  chapter  will  no  doubt  seem  an  elaborate 
attempt  to  prove  the  multiplication  table.  Nevertheless,  where 
such  blinding  metaphysical  dust  has  been  raised,  a  few  drops 
of  the  cold  water  of  common  sense  may  be  not  only  harmless 
but  useful." 

OPINIONS  ARE  NON-MORAL. 

Since  our  beliefs  are  not  a  matter  of  uncaused  choice, 
but  an  unavoidable  consequence,  man  cannot  properly  be  held 
morally  responsible  for  what  he  believes.  Moral  responsibility 
or  guilt  cannot  attach  itself  to  our  thoughts,  and  no  man 
should  be  punished  for  holding  or  expressing  unpopular  or 
unconventional  or  miscalled  "immoral"  opinions,  at  least  until 
it  is  shown  that  actual  material  and  direct  injury  has  resulted 
to  some  one,  not  an  adult  who  invited  the  damage  or  was  him- 
self an  immediate  participating  cause. 

An  abstract  opinion,  or  its  verbal  expression,  cannot  be 
either  moral  or  immoral,  though  conduct  based  thereon  may 
be.  Those  who  advocate  a  moral  censorship  of  literature  are 
confounding  the  consequences  of  opinion  with  those  of  con- 
duct. The  evil  consequences  of  the  latter  flow  from  the  acts 
alone,  while  opinions  in  themselves  can  have  no  evil  con- 
sequences. To  produce  such  the  published  opinion  must  first 
be  assimilated  by  the  receiving  mind,  and  then  transformed 
into  injurious  non-self  regarding  action.  Therefore  it  is  the 
conduct  and  never  directly  the  opinion  which  is  immoral. 

Some  who  justify  intolerance  admit  this,  and  think  they 
evade  its  consequences  by  saying  that  they  believe  in  punish- 
ing difference  of  opinion  only  in  its  expression,  which  is 

89 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

acting,  not  thinking.  ''Thinking  is  free,"  they  say,  "but 
speech  is  so  only  by  tolerance,  not  as  a  matter  of  right.  No 
man  may  injure  us  by  his  speech,  any  more  than  with  his 
club.  The  spoken  or  printed  word  may  be  an  act  as  guilty, 
as  inexcusable  and  as  painful  as  a  knife-thrust."  This  is  all 
true,  but,  rightly  interpreted,  is  no  answer  to  the  doctrine  of 
the  freedom  of  speech,  rightly  understood. 

Save  in  palliating  exceptions,  well  recognized  in  the  law 
of  libel  and  slander,  you  may  not  talk  about  one  person  to 
another,  so  as  wantonly  to  injure  the  former  in  his  good 
name,  credit,  property,  etc.  This,  however,  cannot  be  made 
to  justify  the  proposition  that  you  may  not,  with  the  con- 
sent of  the  listeners  or  readers,  express  to  them  any  speculative 
conviction,  upon  any  subject,  even  sex,  which  is  not  directly 
invasive  of  anyone's  rights  or  equality  of  liberty.  That  speech 
is  free  only  by  tolerance  is  also  an  acceptable  maxim,  if  we 
understand  the  tolerance  of  the  sane  adult  listener,  or  reader, 
and  not  the  tolerance  of  others.  No  one  should,  or  can,  be 
compelled  to  read  anything  or  to  assimilate  what  he  reads. 
Consequently  nobody  needs  the  help  of  the  state  to  protect  him 
against  compulsory  intellectual  exercise. 

THE  RIGHT  TO  HEAR  AND  READ. 

The  right  of  expression  of  opinion  is  inseparable  from  the 
right  to  hear  and  weigh  arguments.  The  state  can  have  no 
property  right  in  the  unchangeableness  of  anyone's  opinions, 
even  about  sexual  ethics,  such  as  to  warrant  it  in  prohibiting 
him  to  alter  such  opinions.  If  the  state  has  no  warrant  to 
prohibit  a  change  of  view,  it  has  no  moral  right  to  compel 
attendance  at  church  or  elsewhere,  for  the  purpose  of  unify- 
ing thought,  nor  to  prohibit  any  person  to  supply  the  facts 
and  arguments  which  may  be  the  means  of  producing  a 
changed  view.  This  conclusion  is  not  to  be  altered  according 
to  whether  the  ideas  are  woven  into  poetry,  fiction,  painting, 
music  or  science.  No  one  can  compel  another  to  read;  no 
one  can  rightfully  deny  him  the  privilege  of  reading,  or 
another  the  opportunity  of  preparing  or  furnishing  him  the 
reading  matter  upon  request ;  none  but  an  insufferable  tyrant 
would  attempt  such  a  thing,  even  upon  the  subject  of  sex.  To 
deny  one  the  right  to  come  into  possession  of  part  of  the  evi- 
dence is  just  as  objectionable  as  to  compel  attendance  where 
only  the  rest  of  the  evidence  will  be  related. 

A  change  of  opinion,  through  added  knowledge  and  its 
rational  assimilation,  only  means  intellectual  development 

90 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE   PRESS. 

which  can  seldom  injure  anyone.  But  if  injury  shall  ever 
come  to  us  by  our  acquisition  of  new  facts,  or  the  achieve- 
ment of  new  opinions,  then,  unlike  the  injury  of  another's 
knife-thrust,  it  comes  only  by  our  active  co-operation  toward 
the  accomplishment  of  that  injury. 

Usually  the  "injury,"  resulting  directly  from  an  acceptance 
of  unpopular  beliefs,  exists  only  in  the  imagination  of  those 
holding  contrary  opinions,  and  they  should  never  be  entrusted 
with  the  always  dangerous  power  of  forcing  upon  sane  adults, 
against  their  protest,  any  unappreciated  and  undesired,  ready- 
made,  intellectual  blessing.  Of  necessity,  minorities  must 
have  the  same  right  and  opportunity  to  express  their  opinions 
and  to  try  to  secure  the  majority  endorsement,  as  the  majority 
have  to  express  contrary  ones.  To  deny  this  is  to  destroy  all 
possibility  for  intellectual  advancement,  since  new  truths  are 
at  first  revealed  only  to  the  few,  and  these  innovators,  and 
their  advanced  ideas,  are  invariably  denounced  by  the  stupidity 
of  an  unreasoning  conservatism.  This  is  just  as  true  about 
the  hygiene,  physiology,  psychology  and  ethics  of  sex,  as  about 
anything  else.  In  support  of  this  contention  for  a  liberty  of 
speech  and  press  regardless  of  dreaded  hypothetical  conse- 
quences, we  may  well  quote  the  unanswerable  logic  of  Profes- 
sor Cooper.  He  wrote: 

THIS  is  DEMONSTRATION. 

"Indeed,  no  opinion  or  doctrine,  of  whatever  nature  it  ber 
or  whatever  be  its  tendency,  ought  to  be  suppressed.  For  it 
is  either  manifestly  true  or  it  is  manifestly  false,  or  its  truth 
or  falsehood  is  dubious.  Its  tendency  is  manifestly  good,  or 
manifestly  bad,  or  it  is  dubious  and  concealed.  There  are  no 
other  assignable  conditions,  no  other  factors  of  the  problem. 

"In  the  case  of  its  being  manifestly  true  and  of  good  tend- 
ency, there  can  be  no  dispute.  Nor  in  the  case  of  its  being 
manifestly  otherwise ;  for  by  the  terms  it  can  mislead  nobody. 
If  its  truth  or  its  tendency  be  dubious,  it  is  clear  that  nothing 
can  bring  the  good  to  light,  or  expose  the  evil,  but  full  and 
free  discussion.  Until  this  takes  place,  a  plausible  fallacy  may 
do  harm ;  but  discussion  is  sure  to  elicit  the  truth  and  fix  public 
opinion  on  a  proper  basis ;  and  nothing  else  can  do  it." 

Again,  let  me  also  quote  from  Vol.  6  of  Westminster 
Review : 

"It  is  obvious  there  is  no  certain  and  universal  rule  for  de- 
termining, a  priori,  whether  an  opinion  be  useful  or  perni- 
cious, and  that  if  any  person  be  authorized  to  decide,  unfet- 

9* 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

tered  by  such  a  rule,  that  person  is  a  despot.  To  decide  what 
opinions  shall  be  permitted  and  what  prohibited,  is  to  choose 
opinions  for  the  people ;  since  they  cannot  adopt  opinions 
which  are  not  suffered  to  be  presented  to  their  minds.  Who- 
ever chooses  opinions  for  the  people  possesses  absolute  control 
over  their  actions,  and  may  wield  them  for  his  own  purposes 
with  perfect  security,  and  for  evil  as  well  as  for  good  unless 
infallible." 

If  there  exists  an  opinion,  the  truth  or  falsity  of  which  is 
unanimously  conceded  to  be  of  no  consequence  to  humanity, 
either  for  good  or  evil,  then  no  excuse  can  be  given  for  sup- 
pressing it,  and  indeed,  no  one  would  be  interested  to  prohibit 
its  discussion  or  to  discuss  it.  If  the  truth  of  an  opinion  is 
by  any  deemed  to  be  of  consequence  to  humanity,  then  there 
exist  only  reasons  for  encouraging  the  greatest  freedom  of 
discussion  and  experimentation,  since  these  are  the  only  ave- 
nues to  the  correction  of  any  opinions,  even  upon  the  subject 
of  sexual  physiology,  psychology,  hygiene,  or  ethics. 

So  long  as  there  is,  among  sane  adults,  difference  of  opinion 
about  anything,  our  race  has  not  as  to  that  subject  matter  at- 
tained to  certain  knowledge,  and  only  freedom  in  the  inter- 
change of  opinion  and  experimentation  can  help  us  onward. 
When  our  knowledge  of  sex,  religion,  etc.,  has  been  established 
to  a  mathematical  certainty  there  will  be  no  difference  of  opin- 
ion, and  to  suppress  or  abridge  discussion  upon  these  subjects 
before  we  have  reached  mathematical  certainty  for  our  con- 
clusions, is  an  outrage  because  it  is  the  most  effective  bar  to 
our  attainment  of  such  certitude. 

"DANGEROUS"  OPINIONS. 

But,  it  is  said,  this  justifies  the  spread  of  "dangerous''  opin- 
ions. Yes,  it  does.  It  is  time  enough  to  punish  dangerous 
opinions  when  the  "danger"  has  ceased  to  be  merely  specula- 
tive and  hypothetical;  that  is  when  it  is  shown  to  have  ac- 
tually resulted  in  the  violent  or  fraudulent  invasion  of  nature's 
rule  of  justice. 

If  the  advocate  of  a  "dangerous"  opinion  has  not  himself 
been  induced  by  it  to  commit  an  unjust  interference  with  the 
largest  equal  liberty  of  others,  it  is  improbable  that  it  will 
induce  his  hearers  or  readers  to  become  invaders.  If  the  opin- 
ion is  dangerous  in  those  who  might  hear  or  read  it,  it  is  pre- 
sumably equally  dangerous  in  the  mind  of  him  who  would 
express  it  verbally,  if  permitted.  If  we  are  warranted  in 
excluding  the  opinion  from  the  minds  of  others  because  it 

92 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE    PRESS. 

tends  towards  "dangerous"  acts,  then  we  are  also  warranted 
in  making  such  dangerous  acts  impossible  to  those  who  already 
entertain  such  "dangerous"  opinions.  Furthermore,  we  can- 
not then  be  logically  compelled  to  await  the  realization  of 
that  danger  from  those  already  convinced,  any  more  than  from 
those  about  to  be  convinced.  Such  premises  bring  us  una- 
voidably to  the  result  that  society  would  be  justified  in  engag- 
ing in  inquisitions  for  the  discovery  of  every  man's  opinions, 
with  the  purpose  of  incarcerating  him  for  life,  or  until  a 
change  of  conviction,  as  a  means  of  preventing  the  "danger" 
which  his  opinions  are  supposed  to  threaten.  Thus  the  denial 
of  an  unlimited  liberty  of  speech  and  press  leads  us  by  una- 
voidable logic  back  to  a  total  denial  of  both  liberty  and  secrecy 
of  conscience. 

Since  these  speculative  and  hypothetically  "dangerous" 
opinions  are  to  have  their  dangerousness  determined  wholly 
by  a  priori  methods,  no  limitation  by  way  of  general  rule  can 
possibly  be  put  upon  the  whim,  caprice,  or  superstitious  fears 
of  the  mob.  It  follows  that  if  we  are  to  admit  the  power  or 
justify  any  suppression  whatever,  of  the  expression  of  any 
opinion  whatever,  we  by  necessary  inference  admit  the  ex- 
istence of  a  rightful  authority  for  every  inquisition,  and  the 
punishment  of  every  unpopular  opinion,  though  silently  and 
harmlessly  entertained.  There  is  no  line  which  can  be  drawn 
between  admitting  the  jurisdiction  of  the  State  to  incarcerate 
any  man  for  any  opinion  whatever,  even  those  secretly  enter- 
tained, and  the  liberty  of  conscience,  speech  and  press  unre- 
stricted even  in  the  very  slightest  degree.  The  initial  act  of 
tyranny  by  which  we  now  justify  our  present  abridgments  of 
the  liberty  of  speech  and  press,  thus  furnishes  the  precedent 
and  justification  for  a  total  denial  of  the  liberty  of  conscience. 

If  we  would  preserve  any  semblance  of  liberty  of  opinion, 
it  must  be  liberty  for  the  entertainment  and  expression  of  any 
opinion  whatever.  Let  us  then  put  ourselves  firmly  on  the  side 
of  those  who  would  never  punish  any  opinion,  until  it  had  re- 
sulted in  an  overt  act  of  invasion,  and  then  punish  the  holder  of 
the  "dangerous"  opinion  only  for  his  real  participation  in  that 
act,  as  a  proven  accessory,  and  not  otherwise. 
FOUNDATION  OF  LIBERTY. 

This  then  brings  us  back  to  that  firm  foundation  of  liberty 
which  was  expressed  by  Holt,6  in  these  words:  "Private  im- 
morality or  vice  without  public  example  [of  invasion],  and 

5Law   of  Libel,"   p.    72,  1816. 

93 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

terminating  in  the  individual,  is  left  to  a  more  solemn  reck- 
oning." 

The  same  thought  is  found  in  Herbert  Spencer's  defini- 
nition  of  liberty,  expressed  by  him  in  these  words :  "Every  man 
has  freedom  to  do  all  that  he  wills,  provided  he  infringes  not 
the  equal  freedom  of  any  other  man."  No  opinion,  even 
though  it  advocates  such  infringement  of  another's  equal  free- 
dom, can  by  the  mere  verbal  expression  of  it  constitute  such 
infringement.  It  follows  that,  no  matter  how  slight,  every 
abridgment  of  the  liberty  of  conscience,  speech  or  press  is  it- 
self an  unpardonable  tyranny  and  necessarily  implies  a  justifi- 
cation for  every  form  of  inquisition,  and  for  every  form  of 
lawless  absolutism,  in  the  constituted  tyrannical  power. 
RIGHT  AND  WRONG  METHODS. 

The  methods  and  evil  consequences  of  the  intellectual  activ- 
ity of  all  superstitious  or  bigoted  persons  are  the  same.  In- 
stead of  leading  others  to  an  acceptance  of  their  conclusions 
by  encouraging  an  examination  of  all  possible  pertinent  evi- 
dence, they  inculcate  their  convictions  by  dogmatic  reiteration 
and  a  cultivation  of  associated  emotions  of  approval.  Thus 
they  instil  into  the  minds  of  the  weak  and  immature  a  forceful 
habit  of  unfairness,  of  imbecility,  and  of  mental  corruption, 
which  unfits  all  affected  ones  for  honest  inquiry  or  the  love  of 
truth,  or  a  desire  to  weigh  opposing  evidence.  The  bigot 
always  attempts  to  frighten  others  from  honestly  or  thor- 
oughly investigating  his  convictions,  by  denouncing  disagree- 
ment as  dangerous,  wickedly  heretical,  and  therefore  "im- 
moral." By  such  superstitious,  ethical  sentimentalizing,  the  be- 
nighted, in  the  name  of  the  social  good,  deny  others  the  right 
or  the  means  of  examining  their  boasted  "morality." 

The  small  mind  is  incapable  of  seeing  the  distinction  be- 
tween indifference  to  the  truth  of  one's  opinions  and  indif- 
ference as  to  which  of  conflicting  opinions  shall  prove  to  be 
true.  The  former  is  the  attitude  of  the  bigot  and  persecutor, 
otherwise  he  could  not  justify  the  limitation  of  discussion, 
and  the  suppression  of  evidence.  The  latter  proposition  pre- 
sents the  temper  of  the  scientists,  who  therefore  desire  to  con- 
sider all  the  material  evidence  adducible. 

The  man  of  rational  mind  considers  all  evidence,  for  the 
love  of  truth,  but  never  loves  any  statement  of  alleged  truth 
before  it  is  fairly  demonstrated  to  be  true,  and  even  then,  he 
accepts  it  as  only  a  conditional  truth,  for  the  correction  of 
which  all  new  evidence  will  ever  be  welcomed. 

94 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE    PRESS. 

Purists  of  literature  confound  the  attributes  of  belief  with 
those  of  the  behavior  toward  evidence.  They  ascribe  to  mere 
belief  the  praise  or  blame  which  can  only  be  due  to  one's 
mode  of  dealing  with  evidence.  Thus  they  make  a  virtue  of 
unfairness,  by  forcibly  suppressing  a  part,  or  punishing  an 
honest  weighing  of  all  the  evidence.  They  bribe  men's  intel- 
lect to  the  suicide  of  logic,  by  withholding  praise  or  reward 
from  the  only  mental  activity  which  merits  praise  or  blame, 
viz.,  the  presence  or  absence  of  a  full  and  impartial  inquiry 
by  every  individual  for  himself.  Since  instilling  opinions 
into  others,  without  evidence,  engenders  an  habitual  neglect 
of  evidence,  the  dogmatist  of  morals  is  the  only  man  who 
can  be  guilty  of  intellectual  immorality,  because  he  nurtures 
the  essence  of  all  depravity. 

"The  habit  of  forming  opinions  and  acting  upon  them 
without  evidence,  is  one  of  the  most  immoral  habits  of  mind. 
As  our  opinions  are  the  fathers  of  our  actions,  to  be  indif- 
ferent about  the  evidence  of  our  opinions  is  to  be  indifferent 
about  the  consequences  of  our  actions.  But  the  consequences 
of  our  actions  are  the  good  and  evil  of  our  fellow  creatures. 
The  habit  of  neglect  of  evidence,  therefore,  is  the  habit  of 
disregarding  the  good  or  evil  of  our  fellow  creatures."  This 
is  the  foundation  of  all  evil,  and  it  follows  that  the  moral  cen- 
sors of  literature,  being  guilty  of  this  habit,  it  must  be  a  rare 
accident  if,  from  a  more  enlightened  view,  and  in  long  per- 
spective, they  be  not  judged  deep  in  vice. 

It  is  the  disregard  for  and  misuse  of  evidence  by  the  masses 
which  explains  the  existence  of  all  pernicious  institutions,  and 
the  mischievous  opinions  which  support  them  and  furnish  their 
hateful  durability. 

If  there  can  be  any  intellectual  crime,  it  must  consist 
of  the  voluntary  neglect  of  evidence  within  reasonable  access, 
and  the  highest  degree  of  this  criminality  must  attach  to  those 
who  deliberately  suppress  this  evidence  which  otherwise  might 
be  accessible  to  others  prepared  to  make  a  right  use  of  it. 
No  man  can  be  held  responsible,  nor  should  he  be  punished, 
for  the  effect  which  may  be  produced  on  his  understanding 
by  the  partial  evidence  to  which  alone  he  had  access.  From 
this  it  follows  that  errors  of  the  understanding  must  be  cor- 
rected by  an  appeal  to  the  understanding.  Fines  and  im- 
prisonment are  bad  forms  of  syllogism,  which  may  suppress 
truth,  but  can  never  elicit  it. 

95 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

"The  public  interest  requires  that  every  difficult  question 
[even  questions  of  the  hygiene,  the  psychology  and  the  ethics 
of  sex]  should  be  patiently  and  deliberately  examined  on  all 
sides,  under  every  view  in  which  it  presents  itself;  that  no 
light  should  be  excluded,  but  evidence  and  argument  of  every 
kind  should  have  their  full  hearing.  It  is  thus  that  the 
doubtful  truths  of  one  generation  become  the  axioms  of  the 
next;  and  that  the  painful  results  of  laborious  investigation 
and  deep  thinking  gradually  descend  from  the  closet  of  the 
learned  and  pervade  the  mass  of  the  community,  for  the  com- 
mon improvement  of  mankind." 

It  must  be  axiomatic  that  upon  every  question  of  im- 
portance to  any  human  being  it  is  the  right  of  each  individual 
to  have  the  most  intelligent  opinion  of  which  his  capacity  for 
understanding  will  permit.  That  being  true,  it  is  his  inalien- 
able right  to  have  access  to  all  the  arguments  and  evidences 
which  any  other  human  would  be  willing  to  supply,  if  permitted 
to  do  so.  The  denial  of  this  right,  through  the  moral  cen- 
sorship of  literature  for  sane  adults,  is  an  infamous  tyranny. 

"All  benefit  of  having  evidence  is  lost  if  it  comes  into  a 
mind  prepared  to  make  bad  use  of  it.  The  habit  of  attaching 
one's  self  to  one  side  of  a  question  is  a  habit  of  confirmed 
selfishness,  of  low  order,  and  immoral.  By  the  habit  of  be- 
lieving whatever  a  man  [under  perverse  associations  of  his 
emotions  of  approval]  wishes  to  believe,  he  becomes  in  pro- 
portion to  the  strength  of  the  habit,  a  bad  neighbor,  a  bad 
trustee,  a  bad  politician,  a  bad  judge,  a  shameless  advocate. 
A  man  whose  intellect  is  always  at  the  command  of  his  sin- 
ister interest,  is  a  man  whose  conscience  is  always  at  the 
command  of  it." 

INTELLECTUAL  IMMORALITY. 

It  irresistibly  follows  from  these  considerations  that  the 
only  intellectual  "immorality"  which  any  man  can  commit,  is 
that  committed  by  those  who  systematically  procure  the  sup- 
pression of  evidence,  and  in  this  regard,  no  exception  can 
be  made  because  the  subject  matter  of  the  suppression  is 
sexual.  I  therefore  charge  that  the  most  "immoral"  persons 
on  earth  are  those  responsible  for  the  suppression  of  miscalled 
"impure  literature."  If  error  and  knowledge  are  incompat- 
ible, then  error  and  ignorance  must  be  inseparable  and  the 
censors  of  literature  must  be  the  chief  perpetuators  of  mental 
and  moral  stagnation. 

"It  is  a  truth  that  men  ought  no  longer  to  be  led,  and  it 

96 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE   PRESS. 

would  be  a  joyful  truth,  if  truth  it  were,  that  they  are  re- 
solved no  longer  to  be  led  blindfold  in  ignorance.  It  is  a 
truth  that  the  principle  which  leads  men  to  judge  and  treat 
each  other,  not  according  to  the  intrinsic  merit  of  their  action, 
but  according  to  the  accidental  and  involuntary  coincidence 
of  their  opinions,  is  a  vile  principle.  It  is  a  truth  that  man 
should  not  render  account  to  man  for  his  beliefs" — even  on 
the  subject  of  sex. 

AUTHORITY  DESTROYING  LIBERTY. 

All  those  who  love  liberty  more  than  power,  and  have  the 
intelligence  to  see  in  the  present  and  future  the  development 
of  tyranny  by  our  rapid  growth  of  arbitrary  power  as  mani- 
fested in  our  growing  censorship  of  the  mails  and  press;  the 
spread  and  development  of  "constructive  contempt"  of  court; 
the  progress  of  executive  legislation  at  Washington ;  the  asser- 
tion through  government  by  injunction  that  the  justice  of  em- 
ployers, or  our  economic  system,  is  to  be  criticized  only  at  the 
times  and  places,  and  to  the  persons  who  have  the  court's  per- 
mission; the  laws  creating  a  censorship  over  the  opinions  of 
all  immigrants,  and  prohibiting  the  advocacy  within  some  of 
our  states  of  violent  resistance  of  tyranny  abroad ;  the  pun- 
ishment of  a  Philippine  editor  for  publishing  our  Declaration 
of  Independence  as  conducing  to  insurrection ;  the  suppression 
of  an  American  paper  in  Porto  Rico  for  criticizing  public  of- 
ficials and  denying  the  rightful  opportunity  to  prove  the 
truth  of  its  allegation ;  the  official  destruction  by  the  New 
York  postal  officials  of  several  hundred  thousand  post-cards, 
which  reflected  on  a  candidate  for  public  office ;  the  demand  of 
the  beef  packers  that  magazines  criticizing  their  busniess  be  de- 
nied the  use  of  the  mails ;  the  arrest  in  Idaho  of  an  editor  for 
publishing  questions  asking  a  petty  militia-despot  where  under 
the  Constitution  he  found  the  warrant  for  his  acts  during  a 
strike-disorder — all  these  developments  of  recent  years  show  in 
our  country  a  condition,  which,  with  many  other  circumstances, 
tends  to  the  downfall  of  our  liberties.  Unless  these  tendencies 
are  checked,  and  checked  effectively,  the  time  may  come 
when  the  descendants  of  those  who  now  will  not  defend  the 
liberties  of  others  may  have  to  defend  their  own  under  the 
added  difficulty  of  multiple  precedents. 

The  best  way  to  prevent  this  is  to  re-establish,  as  the  foun- 
dation of  all  liberties,  all  that  freedom  of  speech  and  press, 
which  is  now  in  various  ways  abridged  upon  a  half  dozen  sub- 
jects, and  soon  may  be  abridged  upon  still  other  subjects. 

97 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 
ON  THE  RIGHT  TO  KNOW 

All  life  is  an  adjustment  of  constitution  to  environment. 
The  seed  dies,  or  has  a  stunted  or  thrifty  growth,  according 
to  the  degree  of  harmonious  relationship  it  effects  with  soil, 
moisture  and  sunlight.  So  it  is  with  man:  He  lives  a  long, 
happy  and  useful  life,  just  to  the  degree  that  his  own  organism 
functions  in  accord  with  natural  law  operating  under  the  best 
conditions.  It  follows  that  a  growing  perfection  in  the  knowl- 
edge of  those  laws  is  essential  to  a  progressive  harmony  in  the 
individual's  conscious  adjustment  to  his  physical  and  social 
environment,  and  every  one  of  us  has  the  same  right  as  every 
other  to  know  all  that  is  to  be  known  upon  the  subject  of  sex, 
even  though  that  other  is  a  physician. 

Since  a  comparative  fullness  of  life  depends  upon  the  rela- 
tive perfection  of  the  individual's  adjustment  to  the  natural 
order,  and  since  the  greatest  knowledge  of  nature's  rule  of  life 
is  essential  to  the  most  perfect  conscious  adjustment  (which 
is  the  most  perfect  life),  it  follows  that  our  equality  of  right 
to  life,  liberty,  and  the  pursuit  of  happiness  entitles  every  sane 
adult  person  to  know  for  himself,  to  the  limit  of  his  desire 
and  understanding,  all  that  can  be  known  of  nature's  processes, 
not  excluding  sex. 

Every  sane  adult  person,  if  he  or  she  desires  it,  is  equally 
entitled  to  a  judgment  of  his  or  her  own  as  to  what  is  the 
natural  law  of  sex  as  applied  to  self,  and  to  that  end  is  person- 
ally entitled  to  all  the  evidence  that  any  might  be  willing  to 
submit  if  permitted.  It  is  only  when  all  shall  have  access  to  all 
the  evidence  and  each  shall  have  thus  acquired  intelligent 
reasoned  opinions  about  the  physiology,  psychology,  hygiene, 
and  ethics  of  sex,  that  we  can  hope  for  a  wise  social  judgment 
upon  the  problems  which  these  present.  The  greatest  freedom 
of  discussion  is  therefore  essential  as  a  condition  for  the  im- 
provement of  our  knowledge  of  what  is  nature's  moral  law 
of  sex,  and  is  indispensable  to  the  preservation  of  our  right  to 
know. 

It  was  precisely  this  right  to  know  that  the  framers  of  our 
Constitution  intended  to  guarantee  to  us  by  those  provisions 
against  the  abridgment  of  our  freedom  of  speech  and  of  the 
press.  Prior  to  our  American  Constitutions,  the  English  sub- 
ject had  a  liberty  to  hear,  but  it  was  an  abridgable  liberty, 

98 


UNDERLYING    CONSTITUTIONAL   GUARANTEE   OF   FREE    PRESS. 

existing  as  a  matter  of  permission.  The  makers  of  our  Con- 
stitution intended  to  guarantee  to  us  an  unabridgable  liberty 
to  hear  and  to  read,  that  is,  they  intended  to  insure  us  an  un- 
limited intellectual  liberty  as  a  matter  of  constitutionally  guar- 
anteed right. 

A  SUGGESTION  FOR  THE  TIMID. 

Those  who  reason  sanely  it  seems  must  conclude  that 
when  any  persons  are  old  enough  by  law  to  enter  matrimony, 
when  any  person  is  old  enough  by  law  to  enter  matrimony, 
which  involves  actual  sex  experience,  then  they  should  be 
conclusively  presumed  competent  to  choose  for  themselves  the 
quantity  and  quality  of  psychic  sex  stimuli  they  wish  to  have, 
and  whether  it  shall  come  through  the  means  of  good  or  bad 
art,  literature,  drama,  or  music.  It  is  not  clear  to  me  why  we 
should  seek  by  law  to  control  the  sexual  imaginings  of  those 
persons  to  whom  it  accords  a  perfect  right  to  sexual  relations. 
I  can  even  see  force  in  the  methods  of  the  ancient  Greeks  who 
believed  that  dancing  and  athletics  in  nudity  conduced  to 
health  and  honored  marriage. 

Those  who  esteem  mere  psychic  lasciviousness  a  more 
serious  offense  than  the  corresponding  physical  actuality,  lay 
themselves  open  to  be  justly  accused  of  erotomania.  How  can 
we  expect  even  married  people  to  live  wholesome  lives  so  long 
as  we  deny  them  the  opportunity  for  any  detailed  discussion 
as  to  what  tends  toward  wholesomeness  ? 

By  giving  the  widest  possible  scope  for  the  dissemination, 
among  adults,  of  the  scientific  literature  of  sex,  and  by  furnish- 
ing appropriate  instruction  in  our  public  schools,  the  present 
morbid  curiosity  would  soon  be  dissipated  and  within  a  genera- 
tion practically  all  parents  could  be  made  competent  and  judi- 
cious instructors  and  guides  for  their  own  children.  With  this 
accomplished,  you  need  never  again  fear  the  ills  which  are  now 
dreaded,  and  the  present  sexual  intelligence  would  have  been 
so  much  improved  as  to  insure  a  very  general  progress  in 
public  morals.  Thus  through  the  greatest  liberty  of  speech  and 
press,  at  least  for  the  instruction  of  all  over  18  years  of  age,  we 
may  reasonably  hope  to  secure  for  the  next  generation  an  en- 
lightened conscience  as  to  all  questions  of  sexual  health  and 
morals.  Since  minors  bear  a  different  relation  to  the  govern- 
ment than  do  adults,  it  is  probable  that  Congress  and  the  States 


99 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL    LAW. 

would  have  power  to  pass  appropriate  laws  applicable  only  to 
such  minors,  even  though  present  laws  were  held  unconstitu- 
tional. However  that  may  be,  our  present  laws  cannot  be  up- 
held without  repudiating  all  those  considerations  which  under- 
lie our  constitutional  guarantees  for  unabridged  liberty  of 
speech  and  of  the  press,  nor  without  the  judicial  destruction  of 
those  guarantees  themselves. 


CHAPTER  VI. 
OBSCENITY,  PRUDERY  AND  MORALS.* 

The  advocates  of  our  present  censorship  of  literature  be- 
lieve that  their  work  is  justified  by  the  claim  of  its  moralizing 
tendency.  It  is  my  contrary  opinion  that  to-day  there  is  no 
organized  force  in  American  life  which  is  more  pernicious  or 
more  productive  of  moral  evil  in  the  domain  of  sex,  than  the 
very  work  which  has  come  to  be  known  as  Comstockery.  Of 
course  this  judgment  is  based  upon  the  broadest  possible  out- 
look, including  both  the  remote  and  immediate  consequences 
of  that  prudery  which  finds  its  main  stay  in  the  legalized  por- 
tion of  it.  This  "moral"  claim  needs  closer  scrutiny. 

I  assume  that  no  healthy  person,  under  perfectly  natural 
conditions,  ever  intentionally  inflicts  injury  except  in  the  an- 
ticipation of  a  compensating  benefit.  If  then  every  one  pos- 
sessed health,  infinite  wisdom,  and  power  to  control  those  ex- 
ternal conditions  which  now  often  determine  our  conduct,  no 
one  would  be  vicious.  If  under  such  possibilities  any  one  de- 
liberately injured  self  or  another,  it  must  be  a  mere  matter  of 
wantonness  unexplainable  by  any  normal  motive,  and  hence 
would  conclusively  evidence  a  diseased  mind.  Thus  viewed 
intelligence  and  vice  are  incompatible  in  healthy  people,  and 
ignorance  is  the  efficient  handmaid  of  vice,  and  the  parent  of 
vice-promoting.  Every  man  who  is  adequately  informed  as  to 
the  consequence  of  his  act,  and  having  a  mind  sufficiently  well 
trained  to  enable  him  accurately  to  see  the  remote  painful  con- 
sequence of  his  conduct  and  weigh  this  against  its  immediate 
pleasures,  will  never  be  vicious  if  being  virtuous  is  within  his 
power.  If  all  possessed  such  intelligence,  it  would  follow  that 
the  few  remaining  vicious  ones  must  be  either  diseased  or 
acting  under  external  compulsions  which  make  them  vicious 
in  spite  of  their  judgment  and  desire  to  be  otherwise.  There- 
fore, general  sexual  intelligence  must  be  the  most  efficient 
means  of  minimizing  sexual  vice  in  the  healthy  ones,  and  like- 
wise operate  as  the  most  efficient  preventive  of  much  of  the 

*Revised   from   Am.    Journal   of  Eugenics  and    To-morrow. 

101 


CBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

disease  which  results  from,  and  in  turn  increases  vice.  It 
follows  that  every  hindrance  to  sexual  intelligence  must  be  an 
aid  to  sexual  vice,  and  all  the  sexual  vices  and  diseases  are 
chargeable  to  ignorance,  and  all  of  the  latter  is  practically  com- 
pulsory, and  most  of  it  is  chargeable  to  prudery  legalized  and 
unlegalized — that  is  Comstockery. 

The  crowd,  with  its  sensitive  vanity  and  incapacity  for 
critical  thinking,  so  long  as  no  personal  material  interests  are 
involved,  readily  indorses  whatever  is  labeled  "moral"  and 
claims  an  "eminently  respectable"  rating. 

An  organization  devoted  to  promoting  the  seemings  of 
virtue  and  the  substance  of  vice,  and  strong  in  the  pietism  of 
diseased  nerves  as  well  as  political  influence,  is  now  asking  the 
public  to  follow  our  present  nonsensical  legislation  to  its  log- 
ical conclusion.  If  these  unintelligent  "dearies"  have  their 
way,  we  shall  soon  have  not  only  a  sexless,  but  also  a  "smoke- 
less literature."  This  means  that  public  libraries  are  to  ex- 
clude, and  ultimately  legislation  is  to  suppress,  all  books  where- 
in smoking  or  drinking  is  described.  Soon  all  publications 
which  use  the  words  tobacco  or  alcohol  will  be  excluded  from 
the  mails,  and  just  as  logically  and  "morally"  as  what  is  now 
excluded.  "Moral"  sentimentalizing  is  naturally  expressed  in 
righteous  vituperation.  Unenlightened  minds  readily  mistake 
question-begging  epithets  for  reasoning,  and  cowardly  political 
adventurers  enact  its  sentiments  into  law,  thus  bargaining 
away  the  liberties  they  are  sworn  to  protect. 

WHERE    ARE    THE    IMMORAL    CONSEQUENCES? 

To  the  end  that  the  unreason  of  our  purists'  claim  of  moral 
motive  may  be  shown  to  be, untrue,  let  us  make  a  searching 
inquiry  into  the  relationship  of  morals,  literary  fashion  and 
our  aversion  to  "obscene"  literature. 

I  never  have  met  a  purist  nor  any  one  else  who  would  admit 
that  his  own  sex-morality  had  ever  been  the  least  impaired  as 
the  result  of  reading  "obscene"  books.  I  never  have  found 
any  one  even  endeavoring  to  prove  that  a  single  case  of  sexual 
depravity  would  not  have  been  except  for  "obscene"  literature 
or  art.  In  my  boyhood,  and  since,  I  have  seen  pictures  of 
lewdness  and  have  read  some  so-called  "obscene"  books,  and  I 
cannot  discover  that  it  has  injured  me  any,  unless  it  be  injury 
to  have  my  sex-sensibilities  considerably  blunted,  which  I  sus- 
pect may  have  come  partly  as  a  result  of  my  study  of  sexual 
psychology. 

102 


OBSCENITY,    PRUDERY    AND    MORALS. 

Mr.  Comstock  is  also  an  unconscious  witness  to  the  harm- 
lessness  of  obscenities.  In  a  recent  report  he  informs  us  that 
for  thirty  years  he  has  "stood  at  the  mouth  of  a  sewer,"  search- 
ing for  and  devouring  "obscenity"  for  a  salary;  and  yet  he 
claims  that  this  lucrative  delving  in  "filth"  has  left  him,  or 
made  him,  so  much  purer  than  all  the  rest  of  humanity  that 
they  cannot  be  trusted  to  choose  their  own  literature  and  art 
until  it  has  been  expurgated  by  him.  Why  is  Mr.  Comstock 
immune?  It  may  be  because  he  is  an  abnormal  man,  upon 
whom,  for  that  reason,  sensual  ideas  do  not  produce  their  nor- 
mal reaction — in  which  case  it  is  an  outrage  to  make  his 
abnormity  a  standard  by  which,  under  an  uncertain  statute, 
to  fix  what  must  be  withheld  from  others.  On  the  other  hand, 
Mr.  Comstock  may  be  an  average  normal  man,  who  has  seen 
more  "obscene"  pictures  and  read  more  "obscene"  books,  and 
retained  a  larger  collection  of  these,  than  any  other  living  man. 
If  it  is  true  that  his  morality  is  still  unimpaired,  then  it  would 
seem  to  follow  that  "obscenity"  cannot  injure  the  ordinary 
normal  human. 

There  are  no  other  conditions  to  the  problem  than  the  two 
above  stated,  and  this  proves  that  "obscene"  literature 
and  art  are  morally  harmless  upon  all  normal  persons, 
and  that  if  undesired  results  shall  anywhere  manifest  them- 
selves these  are  primarily  due  to  abnormity  in  the  individual 
and  not  to  any  evil  inherent  in  the  particular  stimulation,  which 
only  brought  the  evidence  of  the  abnormity  to  light.  This  is 
illustrated  by  the  fact  that  reading  Uncle  Tom's  Cabin  was 
the  starting-point  in  making  one  man  a  sex-pervert,  and  a  book 
on  surgery  not  connected  with  sex,  as  well  as  much  religious 
exhortation  to  "love  God,"  has  proved  to  operate  as  an  aphro- 
disiac. Of  this  more  will  be  said  later.  The  "immorality"  re- 
sulting from  reading  a  book  depends,  not  upon  its  "obscenity," 
but  upon  the  abnormity  of  the  reading  mind,  which  the  book 
does  not  create,  but  simply  reveals. 

The  girl-child  who  stimulates  into  activity  the  defloration 
mania  of  some  old  roue  is  not  responsible  for  his  assault  upon 
her,  and  the  child  should  not  be  suppressed  or  punished  upon 
any  such  theory.  A  small  boy,  the  sight  of  whom  operates  as 
an  aphrodisiac  upon  a  pervert,  should  not  on  that  account  be 
suppressed  or  punished.  If  a  book  or  a  picture  does  the  same 
for  a  nymphomaniac  or  a  satyr,  the  book  is  not  to  blame ;  and 
for  the  same  reason  that  we  do  not  punish  the  children  in  the 

103 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

above  cases,  so  we  should  not  punish  the  publisher  in  the  last 
case.  The  desire  for  pornographic  literature  is  but  the  evidence 
that  healthy  and  natural  curiosity  has  grown  morbid  through 
the  purist's  success  in  suppressing  the  proper  information, 
which  would  satisfy  it  in  the  normal  state  and  would  be  a  most 
important  factor  in  keeping  it  healthy.  More  voluminous  and 
more  free  sex-discussion  is  therefore  essential  as  a  prophylactic. 
The  public  welfare  and  morality  are  concerned  to  discover 
and  cure  social  diseases  and  are  not  in  the  least  concerned  in 
the  mere  concealment  of  their  symptoms,  and  that  is  all  the 
purist's  present  efforts  amount  to. 

LITERARY  FASHION  AND  MORALS 

There  are  still  other  means  of  proving  the  falsity  of  the 
claim  that  social  utility  and  public  morals  are  concerned  in  the 
suppression  of  obscene  literature.  I  will  now  show  that  in  an- 
other large  number  of  instances  it  is  a  mere  matter  of  un- 
reasoned moral  sentimentalizing  over  words, — that  is,  over  lit- 
erary style,  and  not  over  the  ideas  expressed  or  suggested  nor 
their  moral  consequences,  but  over  the  manner  in  which  it  is 
done. 

Even  the  United  States  Courts  in  their  varied  intellectual 
wabblings  sometitties  agree  with  me  in  asserting  that  the  ob- 
scenity test  of  literature  is  purely  a  matter  of  literary  style. 
Read  this  decision: 

"The  problem  of  population,  and  other  questions  of  social 
ethics  and  the  sexual  relations,  may  be  publicly  discussed  upon 
such  a  high  plane  of  philosophy,  thought,  and  fitness  of  lan- 
guage as  to  make  it  legally  unexceptionable.  They  may  be  dis- 
cussed so  as  to  be  plain  yet  chaste,  so  as  to  be  instructive  and 
corrective  without  being  coarse,  vulgar,  or  seductive.  But 
when  such  publication  descends  to  a  low  plane  of  indecent 
illustrations  and  grossness  of  expression  it  loses  all  claim  to 
respectability/'1  and  therefore  is  criminal.  But  the  "intel- 
ligent" moralists  of  hysteria  are  still  so  certain  that  it  is  ethics 
and  not  literary  style  which  is  in  issue  during  most  "obscenity" 
prosecutions,  that  I  must  make  a  more  careful  analysis  of  the 
moral  claim,  or  pretense,  put  forth  in  justification. 

Those  exemplary  moralists,  the  newspaper-scribblers  and 
their  purist  adherents,  think,  or  pretend,  that  they  are  conserv- 
ing morality  by  mentioning  sexual  irregularity  only  by  well- 
veiled  but  effectively  pointed  insinuations.  These  verbal  mor- 

*U.   S.  vs.   Harman,  45  Federal  Reporter,  p.  423. 

104 


OBSCENITY,    PRUDERY    AND    MORALS. 

alists  will  announce  that  a  divorce  has  been  "granted  upon 
biblical  grounds,"  when  they  mean  "adultery,"  but  for  "moral" 
reasons  would  not  use  the  word.  Let  us  study  the  question  a 
little  and  see  if  morality  is  really  concerned,  or  if  this  is  a 
mere  matter  of  expediency  in  politeness  of  style,  and  based 
upon  moral  sentimentalizing,  instead  of  rational  ethics.  Per- 
haps I  can  best  show  the  absurdity  of  the  former  contention  by 
a  series  of  different  expressions,  all  conveying  precisely  the 
same  thought — which  shall  be  one  that  is  generally  considered 
as  unquestionably  moral — and  then  inquire  where  the  immor- 
rality  begins  in  the  course  of  several  successive  changes  in 
the  mode  of  presenting,  without  changing  the  idea  itself. 

I  think  I  may  assume  that  there  is  no  one  so  silly  as  to 
object  even  slightly  to  such  a  phrase  as  this :  "Thou  shalt  not 
forsake  thy  spouse  and  permit  thyself  to  become  a  partici- 
pant with  another  in  the  initial  act  for  the  investiture  of  a 
human  life."  Perhaps  no  one  would  object  as  yet  if  I  became 
a  little  more  specific  and  wrote :  "Thou  shalt  not  disobey  the 
seventh  commandment."  From  the  fact  that  all  journals  for 
general  circulation  so  studiously  avoid  the  exact  words  of  the 
commandment,  I  judge  that  many  must  deem  it  objectionable 
to  print  "Thou  shalt  not  commit  adultery." 

Now  then,  I  ask,  how  is  morality  differently  concerned  in 
these  different  modes  of  expressing  the  same  idea?  Only  the 
same  identical  thought  is  suggested  to  the  mind  in  each  case, 
and  that  same  idea,  no  matter  by  what  words  symbolized,  must 
present  the  same  moral  command  notwithstanding  differ- 
ent emotions  are  evoked  by  the  different  words  in  whichever 
mode  of  expression  is  used.  That  the  one  set  of  word-sym- 
bols is  associated  with  emotions  of  approval  and  another  with 
emotions  of  disapproval,  concerns  exclusively  the  style  of  ex- 
pression and  has  nothing  whatever  to  do  with  morality. 

Let  me  carry  this  method  a  little  further  and  see  if  it  must 
not  lead  us  always  to  the  same  result,  even  though  it  may  be- 
come more  difficult  to  keep  our  "moral"  sentimentalism  sub- 
ordinate to  our  reasoning  faculties.  Having  now  resolved  that 
reason  shall  be  your  only  guide,  I  will  suggest  a  few  other  ways 
of  expressing  the  seventh  commandment. 

Let  us  suppose  that  some  publisher  should  replace  the  last 
word  of  the  commandment  by  others,  still  presenting  the  same 
idea  and  nothing  else,  and  to  that  end  let  us  suppose  that  he 
should  use  the  stable-boy's  mode  of  expression.  Thus  from 

105 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

sheer  poverty  in  vocabulary  one  might  use  that  word  which  we 
all  learned  and  used  during  our  youth,  "the  most  objectionable 
word  in  the  English  language."  The  idea  which  the  command- 
ment seeks  to  implant  is  unchanged  and  the  morality  of  it  is 
not  in  the  least  altered,  and  yet  most  people  would  now  demand 
a  prosecution  for  "obscenity."  Then  isn't  it  a  mere  matter  of 
literary  style? 

I  might  even  carry  this  transition  in  modes  of  conveying 
the  thought  still  further  and  suggest  the  possibility  that  some 
one  might  take  the  ten  commandments  and  replace  the  verbal 
symbol  of  that  which  is  condemned  by  a  pictorial  presentation. 
The  morality  of  the  idea  and  the  idea  itself  are  unchanged  in 
every  instance,  and  yet  for  thus  expressing  the  prohibition  of 
one  of  the  commandments  every  one  (that  is,  almost  every  one 
who  has  come  under  the  influence  of  puritan  "civilization") 
would  rise  to  demand  the  severest  punishment  of  the  publisher. 
Although  the  idea  of  the  seventh  commandment  would  still  be 
accurately  expressed,  but  simply  because  it  is  done  in  an  un- 
usual and  unprudish  manner,  it  would  be  declared  criminal. 
But  why? 

Again  I  ask,  how  is  morality  differently  concerned  in  these 
different  modes  of  expressing  the  same  idea?  Only  the  same 
identical  thought  is  suggested  to  the  mind  in  each  case,  and  that 
same  idea  probably  would  have  and  produce  the  same  moral 
consequences  whichever  of  the  foregoing  modes  of  expression 
is  used,  notwithstanding  the  difference  in  the  emotions  evoked 
by  the  different  thought-symbols.  All  this  only  proves  over 
again  that  "obscenity"  is  not  in  the  idea  conveyed,  nor  in 
differences  as  to  the  moral  consequences  of  variously  express- 
ing the  seventh  commandment,  but  wholly  and  exclusively  in 
the  emotions  associated  with  particular  methods  of  symbolizing 
the  thought. 

It  is  all  but  a  special  illustration  of  the  rule  stated  by  Pro- 
fessor Thomas  when  he  says:  "When  once  a  habit  is  fixed, 
interference  with  its  smooth  running  causes  an  emotion.  The 
nature  of  the  habit  broken  is  of  no  importance.  If  it  were 
habitual  for  grandes  dames  to  go  barefoot  on  our  boulevards 
or  to  wear  sleeveless  dresses  at  high  noon,  the  contrary  would 
be  embarrassing."2  So  it  is  in  literary  fashion  as  well.  "The 
most  objectionable  word  in  the  English  language"  has  become 
so  only  in  recent  times.  It  is  found  in  the  unexpurgated  edi- 
tions of  Shakespeare,  and  was  the  word  in  polite  use  at  his  time. 

2Sex   and    Society,    p.    207. 

106 


OBSCENITY,    PRUDERY    AND    MORALS. 

In  that  edition  of  the  Bible  published  in  London  in  1615,  known 
as  the  "Breeches"  edition  (because  of  the  use  of  that  word  in 
Genesis  iii,  7),  we  find  "the  most  objectionable  word  in  the 
English  language"  at  I  Corinthians,  chap,  vi,  verse  9.  In  N. 
Bailey's  dictionary,  that  same  "most  objectionable  word  in  the 
English  language"  has  only  a  figurative  application  to  the  pro- 
creative  act  and  its  meaning  is  "to  plant."  By  reason  of  its 
coming  into  general  use,  those  who  wished  to  be  different  from 
the  common  people  invented  new  words  to  express  the  same 
fact.  When  these  new  words  cease  to  operate  as  a  veil,  be- 
cause their  former  figurative  meaning  has  become  literal,  and 
they  have  come  into  general  use  among  the  vulgar,  emotions  of 
disapproval  will  come  to  be  associated  with  the  new  words. 
Other  words  are  then  coined  by  the  polite,  and  what  formerly 
was  "good  form"  now  becomes  obsolete  and  is  denounced  as 
"obscene,"  but  rational  morality  is  not  in  the  least  concerned 
with  this  change  of  literary  fashion.  No !  It  is  only  a  matter 
of  ethical  sentimentalizing — of  the  morals  of  hysteria — and 
has  to  do  only  with  modes  of  expression — that  is,  with  literary 
style,  and  not  moral  consequences.  The  claim  that  the  latter 
is  its  motive  comes  as  a  result  of  that  very  ancient  and  still 
very  popular  error  of  trying  to  objectivize  our  emotional  (sub- 
jective) moral  estimates.  Persons  with  trained  minds  recog- 
nize some  difference  between  a  literary  style  which  is  offensive 
to  chaste  people  and  so  may  reinforce  the  chastity  of  their 
lives,  and  that  literary  style  which,  without  the  coarseness 
which  excites  aversion,  seduces  to  libidinous  conduct.  Our 
literary  purists  usually  fail  to  distinguish  between  an  offense 
to  modesty  and  the  endangerment  of  chastity,  which  are  two 
very  different  conditions^  as  different  as  vexation  and  tempta- 
tion, or  aversion  and  desire  So  it  comes  that  their  opposi- 
tion is  too  often  the  most  vehement  where  the  question  of 
morals  is  least  real. 

LITERARY    VULGARITY    AND    MORALS. 

This  is  not  a  new  thought,  for  it  was  expressed  over  300 
years  ago  by  the  erudite  Peter  Bayle,  and  he  furnished  many 
illustrations  in  support,  some  of  which  will  be  reproduced.  He 
says :  "Such  is  the  nice  taste  of  our  Purists,  they  blame  one 
expression  and  approve  another,  though  they  equally  offer  the 
same  obscenity  to  the  mind.  *  *  *  The  new  whims  of 
those,  who,  as  I  am  told,  begin  to  reckon  the  words  glister 
and  physic  among  the  obscene  terms,  and  use  the  general  word 

107 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

remedy  in  their  room,  would  be  less  unreasonable.  The  word 
glistere  (Glister)  was  laid  aside,  as  including  too  many  cir- 
cumstances of  the  operation,  and  the  word  lavement  took  its 
place,  having  a  more  general  signification.  But  because  the 
idea  of  the  word  lavement  is  become  specific,  and  takes  in  too 
many  circumstances,  it  will  be  quickly  laid  aside  for  fear  of 
sullying  the  imagination,  and  none  but  general  phrases  will  be 
used,  such  as  J'etois  dans  les  remedes,  un  remede  lui  sut  ar- 
donne,  &c.,  which  do  not  more  particularly  denote  a  glister  or 
a  purge,  than  a  bag  of  herbs  hung  about  the  neck.  These  are 
certainly  very  strange  whims." 

Furthermore  I  believe  it  can  easily  be  demonstrated  that 
if  there  is  any  ethical  effect  at  all  that  then  vulgarity  of  liter- 
ary style  in  dealing  with  sex  subjects  must  be  more  conducive 
to  puritan  morality  than  are  the  refined  insinuations  of  veiled 
phraseology. 

Upon  this  question  I  am  also  fortunate  to  be  able  to  quote 
judicial  decisions  in  support  of  my  contention.  Here  is  the 
language  of  a  United  States  Judge.  "The  most  debasing  topic 
may  be  presented  in  the  choicest  language.  In  this  garb  it  is 
the  more  dangerous.  Impure  suggestions  clothed  in  pleasing 
attire  allure  and  corrupt,  when  bald  filth  would  disgust  and 
repel."3 

I  want  to  elaborate  this  thought  and  in  doing  so  vindicate 
my  assertion  that  an  equally  strong  case  can  be  made  to 
prove  that  superior  moral  consequences  may  be  expected  from 
using  vulgar  phrasing  in  discussing  sex.  First  let  us  get  at 
the  reason  for  this  and  later  illustrate  it  by  application  to  sex 
subjects. 

Suppose  I  publish  of  a  man  the  statement  that  he  values 
his  political  principles  so  lightly  that  they  are  easily  outweighed 
by  small  material  advantage.  That  is  so  very  delicate  a  way  of 
saying  that  he  will  sell  his  convictions  that  one  would  scarcely 
feel  any  indignation  over  his  moral  turpitude.  If  on  the  other 
hand  I  denounce  the  same  conduct  of  the  same  man  by  calling 
him  "a  political  prostitute"  we  at  once  feel  more  profound 
resentment,  because  of  the  emotions  of  aversion  which  are 
usually  associated  with  the  last  word  of  the  phrase  and  conse- 
quently felt  for  everything  to  which  it  can  be  applied.  It  is  the 
same  in  discussing  matters  of  sex.  To  do  so  in  coarse  and 
vulgar  language  is  to  arouse  an  aversion  never  experienced  in 
the  polite  phraseology  of  the  unobscene.  If  then  morality  is 

SU.    S.    vs.    Smith,   45   Fed.   Rep.  '477. 

108 


OBSCENITY,  PRUDERY  AND  MORALS. 


at  all  involved  it  must  follow  that  vulgarity  of  style  is  more 
adapted  to  promote  aversion  to  sensualism  than  is  the  unob- 
jectionable form  of  sex  discussion. 

PETER  BAYLE  ON  OBSCENITY. 

Here  too,  I  could  quote  elaborately  from  learned  authority 
in  support,  but  since  I  cannot  take  the  space  to  reproduce  all 
of  Mr.  Bayle's  erudite  discourse  entitled,  "An  Explanation  Con- 
cerning Obscenities,"  I  must  content  myself  with  quoting  only 
a  few  more  paragraphs.  Writing  of  those  who  use  the  veiled 
phrase  to  picture  their  nudities,  he  says: 

"The  delicacy  of  their  touches  has  only  this  effect,  that  the 
people  look  upon  their  pictures  the  more  boldly,  because  they 
are  not  afraid  of  meeting  with  nudities.  Modesty  would  not 
suffer  them  to  cast  their  eyes  upon  them,  if  they  were  naked 
obscenities ;  but  when  they  are  dressed  up  in  a  transparent 
cloth,  they  do  not  scruple  to  take  a  full  view  of  them,  without 
any  manner  of  shame,  or  indignation  against  the  Painter :  and 
thus  the  object  insinuates  itself  more  easily  into  the  imagina- 
tion, and  is  more  at  liberty  to  pour  its  malignant  influence  into 
the  heart,  than  if  the  .soul  was  struck  with  shame  and 
anger.  ***** 

"Add  to  this,  that  when  an  obscenity  is  expressed  only  by 
halves,  but  in  such  a  manner  that  one  may  easily  supply  what 
is  wanting,  they  who  see  it  finish  themselves  the  picture  which 
sullies  the  imagination;  and  therefore  they  have  a  greater 
share  in  the  production  of  that  image,  than  if  the  thing  had 
been  fully  explained.  In  this  last  case  they  had  only  been  pass- 
ive, and  consequently  the  admission  of  the  obscenic  image 
would  have  been  very  innocent ;  but  in  the  other  case  they  are 
an  active  principle,  and  consequently  are  not  so  innocent,  and 
have  more  reason  to  fear  the  contagious  effects  of  that  object, 
which  is  partly  their  work.  Thus  this  pretended  regard  to 
modesty,  is  really  a  more  dangerous  snare ;  it  makes  one  dwell 
upon  an  obscene  matter,  in  order  to  find  out  what  was  not 
clearly  expressed.  ***** 

"This  is  of  still  greater  force  against  the  writers  who  seek 
for  covers  and  reserves.  Had  they  used  the  first  word  they 
met  with  in  a  Dictionary,  they  had  only  touched  upon  an  ob- 
scene thing,  and  gone  presently  over  that  place ;  but  the  covers 
they  have  sought  out  with  great  art,  and  the  periods  they  have 
corrected  and  abridged,  till  they  were  satisfied  with  the  fine- 
ness of  their  pencil,  made  them  dwell  several  hours  upon  an 
obscenity.  They  have  turned  it  all  manner  of  ways ;  they  have 

109 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

been  winding  about  it,  as  if  they  had  been  unwilling  to  leave 
such  a  charming  place.  Is  not  this  ad  sirenum  scopulos  con- 
senescere,  to  cast  anchor  within  reach  of  the  syren's  voice,  and 
the  way  to  spoil  and  infect  the  heart?  It  is  certain,  that  ex- 
cepting those  who  are  truly  devout,  most  of  our  other  Purists 
are  not  in  the  least  concerned  for  modesty,  when  they  avoid 
so  carefully  the  expressions  of  our  ancestors ;  they  are  pro- 
fessed gallants,  who  cajole  all  sorts  of  women,  and  have  fre- 
quently two  mistresses,  one  whom  they  keep,  and  another  who 
keeps  them.  Truly  it  becomes  such  men  very  well  to  exclaim 
against  a  word  that  offends  modesty,  and  to  be  so  nice  when 
something  is  not  left  to  be  supplied  by  the  reader's  imagina- 
tion !  We  may  apply  to  them  what  Moliere  said  of  a  pretended 
prude :  'Believe  me,  those  women  who  are  so  very  formal,  are 
not  accounted  more  virtuous  for  it.  On  the  contrary,  their 
mysterious  severity,  and  affected  grimaces,  provoke  all  the 
world  to  censure  their  actions.  People  delight  to  find  out 
something  to  blame  in  their  conduct.  And  to  give  an  instance 
of  it,  there  were  the  other  day  some  women  at  this  play  oppo- 
site to  our  box,  who  by  their  affected  grimaces  during  the 
whole  representation,  and  turning  aside  their  heads,  and  hiding 
their  faces,  made  people  tell  many  ridiculous  stories  of  them, 
which  had  never  been  mentioned  if  they  had  not  behaved  so; 
nay,  a  footman  cried  out,  that  their  ears  were  chaster  than  all 
the  rest  of  their  body.'  The  men  I  speak  of,  think  only  of 
making  themselves  admired  for  the  delicacy  of  their 
pen.  ***** 

"This  cannot  be  denied:  Nay,  women  of  an  imperfect 
virtue  would  run  less  danger  among  brutish  men,  who  should 
sing  filthy  songs,  and  talk  rudely  like  soldiers,  than  among 
polite  men  who  express  themselves  in  respectful  terms.  They 
would  think  themselves  indispensably  obliged  to  be  angry 
with  those  brutes,  and  to  quit  the  company,  and  go  out  of  the 
room  with  rage  and  indignation.  But  soft  and  flattering  com- 
pliments, or  at  most  such  as  are  intermixed  with  ambiguous 
words,  and  some  freedoms  nicely  expressed,  would  not  startle 
them ;  they  would  listen  to  them,  and  gently  receive  the  poison. 
A  man  who  courts  a  maid  would  immediately  destroy  all  his 
hopes,  should  he  grossly  and  filthily  propose  his  ill  design ;  he 
is  a  perfect  stranger  to  the  Art  of  Love,  if  he  has  no  regard 
to  modesty  in  the  choice  of  his  expressions.  There  is  no  father, 
but  would  rather  have  his  daughters  blush  than  laugh  at  some 

110 


OBSCENITY,    PRUDERY    AND    MORALS. 

stories  told  in  their  presence.  If  they  blush  they  are  safe; 
shame  prevents  the  ill  effect  of  the  obscenity ;  but  if  they  laugh, 
it  makes  an  impression,  and  nothing  diverts  the  stroke.  If 
they  laugh,  it  is  doubtless  because  the  obscenity  was  artfully 
wrapped  up,  and  seasoned  with  an  apparent  modesty.  Had  it 
been  grossly  expressed,  it  would  have  excited  shame  and  in- 
dignation. Farces  in  our  days  are  more  dangerous  than  those 
of  our  ancestors ;  in  former  times  they  were  so  obscene,  that 
virtuous  women  durst  not  appear  at  them ;  but  now  they  do 
not  scruple  to  see  them  under  pretence  that  obscenities  are 
wrapped  up,  though  not  in  impenetrable  covers.  Are  there 
any  such  ?  They  would  bore  them  through,  were  they  made  up 
of  seven  hides  like  Ajax's  shield. 

"If  anything  could  make  La  Fontaine's  Tales  very  per- 
nicious, it  is  their  being  generally  free  from  obscene  ex- 
pressions. 

"Some  ingenious  men,  much  given  to  debauchery,  will  tell 
you  that  the  satires  of  Juvenal  are  incomparably  more  apt  to 
put  one  out  of  conceit  with  lewdness,  than  the  most  modest 
and  most  chaste  discourses  that  can  be  made  against  that  vice. 
They  will  tell  you  that  Petronius  is  not  so  dangerous,  with  all 
his  gross  obscenities,  as  he  is  in  the  nice  dress  of  Count  de 
Rabutin;  and  that  the  reading  of  the  book  entitled,  Les 
Amours  des  Gaules,  will  make  gallantry  much  more  amiable 
than  the  reading  of  Petronius.  *  *  *  * 

"I  know  the  Stoics  laughed  at  the  distinction  of  words,  and 
maintained  that  every  thing  ought  to  be  called  by  its  proper 
name,  and  that  there  being  nothing  dishonest  in  the  conjugal 
duty,  it  could  not  be  denoted  by  any  immodest  word,  and  that 
therefore  the  word  used  by  clowns  to  denote  it  is  as  good  as 
any  other.  *  *  *  * 

"If  chastity  was  inconsistent  with  impure  ideas,  we  should 
never  go  to  church,  where  impurity  is  censured,  and  so  many 
banns  of  matrimony  are  bid :  we  should  never  hear  that  office 
of  the  Liturgy  that  is  read  before  the  whole  congregation  on 
a  wedding-day:  we  should  never  read  the  most  excellent  of 
all  books,  I  mean  the  Holy  Scriptures ;  and  we  should  avoid, 
as  so  many  infectious  places,  all  the  conversations  where  people 
talk  of  pregnancies,  childbirths,  and  christenings.  Imagina- 
tion is  a  rambler  which  runs  in  a  moment  from  the  effect  to 
the  cause,  and  finds  the  way  so  well  beaten,  that  it  goes  from 
one  end  to  the  other,  before  reason  has  time  to  stop  it."4 

4Bayle's  Historical  and  Critical  Dictionary,  pp.  845  to  850,  edition  of  1837. 

Ill 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

All  these  considerations  prove  again  that  literary  vulgarity 
and  immorality  are  not  at  all  related  to  each  other  as  Purists* 
assert. 

ON  MORAL  SENTIMENTALIZING.6 

No  habit  of  human  thought  is  more  universal  and  more 
pernicious  than  that  by  which  the  social  utility,  or  evil,  of  con- 
duct is  measured  by  the  intensity  and  kind  of  the  emotional 
states  which  we  associate  with  it.  Most  of  humanity  still  ap- 
proves all  human  conduct  which  induces  agreeable  emotions 
and  likewise  assumes  that  the  degree  of  badness  may  be  ac- 
curately measured  by  the  intensity  of  the  resentment  which  is 
felt  towards  those  whose  act  is  to  be  judged.  This  is  moral 
sentimentalizing,  though  often  it  is  characterized  by  more  pre- 
tentious names.  Scientific  or  rational  ethics  is  the  very  antith- 
esis of  this.  Instead  of  measuring  moral  values  by  "moral" 
emotions,  the  scientific  mind  limits  moral  emotions  by  moral 
values  which  are  measured  according  to  objective  standards. 

Where  the  emotions  are  most  concerned  there  the  check  of 
right  reason  is  least  effective,  and  moral  sentimentalism.  for 
that  very  reason,  is  most  potent  and  most  misleading.  Thence 
it  comes  that  in  determining  statute  laws  and  ethical  creeds, 
regulative  of  sex-conduct,  we  are  more  often  controlled  by  the 
vehemence  of  hysteria,  than  by  calm  judgments  derived  by 
the  scientific  method.  Even  those  who  live  natural  lives  with 
sound  bodies,  and  therefore  have  too  healthy  minds  to  indulge 
themselves  in  frantic  moral  sentimentalizing,  yet  readily  suc- 
cumb to  the  maniacal  persistence  and  vehemence  of  the  moral- 
ists-of-diseased-nerves.  This  is  so  because  even  the  healthy 
minded  ones  lack  clear  insight  to  a  rational  ethics,  and  there- 
fore they  cannot  frame  to  their  own  satisfaction  arguments 
sufficiently  convincing  to  afford  the  courage  of  resistance. 

Here  do  we  also  find  the  explanation  for  those  conspicuous 
discrepancies  between  statute  law  and  actual  life,  that  is,  be- 
tween public  pretense  and  a  personally  justified  secret  con- 
duct. On  the  whole,  in  such  matters  as  sex-ethics,  our  un- 
coerced  behavior  is  quite  as  likely  to  be  in  accord  with  a  harm- 
less and  healthy  naturalness  as  are  our  pretensions.  The  latter 
are  apt  to  be  controlled  in  such  manner  as  to  avoid  the  censure 
of  the  most  boisterous  sentimentalizer  of  the  community,  who- 

"Condensed  from  The  Pacific  Medical  Journal  for  Nov.,  1907. 

112 


OBSCENITY,,    PRUDERY    AND    MORALS. 

in  turn  are  the  least  safe  guides  to  a  rational  ethics.  In  the 
matter  of  sex-ethics  this  means  that,  as  to  their  pretensions, 
those  who  possess  only  an  .ordinary  healthy  bodily  mechanism 
and  a  healthy  mind  not  highly  trained  will  be  cowed  into  an 
acquiescence  with  others  who  are  possessed  by  abnormal  sen- 
sualism. 

The  only  time  that  the  subject  of  sex  becomes  a  matter  of 
real  controversy  before  the  public  is  when  the  excessively 
sensual  of  different  modes  of  thought  are  pitted  against  one 
another.  As  illustrations  we  may  point  to  the  past  contests 
between  the  Mormon  polygamists,  or  the  Bible  Communists 
of  Oneida,  on  the  one  hand,  and  prurient  prudes  and  senti- 
mental monogamists  ,on  the  other.  Can  any  one  recall  a  single 
real  argument  for  social  utility  that  has  ever  been  advanced 
upon  either  side?  It  is  all  mere  violent  outbreaks  of  moral 
sentimentalizing,  expressed  in  dogmatic  verbalisms  and  ques- 
tion-begging epithets,  all  inspired  by  diseased  nerves.  And 
yet  we  allow  these  hysterical  yelps  upon  both  sides  to  be  the 
only  views  that  ever  achieve  public  expression  or  reach  the 
legislative  and  judicial  ear.  No  wonder  then  that  the  few  who 
can  or  try  to  reason,  even  about  sex-ethics,  stand  aghast  at  the 
achieved  results  of  such  mania,  and  the  general  public  remains 
densely  ignorant  in  spite  by  the  "arguments"  of  mere  "right- 
eous" vituperation.  There  is  room  for  difference  of  opinion 
upon  many  problems  arising  from  sex,  and  it  is  an  outrage 
that  these  are  never  allowed  to  be  publicly  and  fundamentally 
discussed  by  the  clean-minded  with  superior  capacity.  The 
stupid  and  untrue  dogmatism  which  is  tolerated,  and  the  pas- 
sionate outbursts  of  salacious  prudes  and  voluptuaries,  which 
come  upon  us  in  spite  of  repression,  only  make  bad  matters 
worse. 

The  abnormal  aversion  to  healthy  sensualism  is  never 
founded  upon  sexual  indifference,  but  always  the  reverse. 
Acute  eroto-phobia  differs  but  slightly  in  degree  and  not  at  all 
in  its  essence,  from  prudery.  I  remind  the  reader  that  I  am 
writing  of  the  real  prudery,  and  not  its  ignorantly  parroted  imi- 
tation. 

Thus  understood,  all  genuine  prudery  is  always  the  mani- 
festation of  excessive  sensuality,  coupled  with  a  proportion- 
ately extravagant,  fear-created,  desire  to  conceal  it,  all  inducing 
violent  emotions  of  aversion,  either  simulated  or  real. 

The  kinship  of  the  relation  between  insanity  and  health, 
on  the  one  hand,  and  moral  sentimentalizing  and  rational  ethics 

113 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

on  the  other,  is  far  more  real  than  apparent.  From  modesty, 
through  prudery,  to  acute  eroto-phobia,  is  but  a  difference  of 
degrees  in  the  intensity  of  emotional  aversion.  All  these  dif- 
ferent degrees  may  be  excited  in  different  persons  by  the  same 
objective  stimulus,  which,  however,  will  leave  one  who  is  com- 
paratively indifferent  to  sex,  without  any  consciousness  either 
of  modesty  or  of  shame. 

Moderate  modesty,  like  milder  forms  of  mono-mania,  is 
due  to  a  lost  perspective,  imposed  by  perverse  education.  A 
sex-centered  attention  thus  induced,  easily  destroys  all  capacity 
for  seeing  the  obsessing  subject-matter  in  its  right  proportion 
to  related  objects.  When  to  this  we  add  that  emotional  inten- 
sity and  certitude,  which  are  the  product  of  diseased  nerves, 
modesty  becomes  eroto-phobia.  The  degree  of  prudery  is  usu- 
ally the  exact  measure  of  the  individual's  hypersensualism. 

So  then  it  comes  to  this,  that  modesty,  like  insanity,  in  the 
kind  and  degree  of  its  sensitiveness,  is  dependent  primarily 
upon  subjective  conditions.  Each  person's  modesty  is  sensi- 
tive to  lascivious  suggestion,  just  to  the  degree  that  such  in- 
dividual is  sensually  obsessed,  and  the  degree  to  which  the 
sexual  nerve  centers  are  diseased.  All  prudery  which  is  not  a 
mere  stupid  mimicing  of  others,  that  is  all  genuine  prudery,  is 
therefore  seen  to  be  founded  upon  excessive  lewdness. 

Abnormal  sex-sensitiveness  always  produces  sex  over-valu- 
ation, either  of  the  beneficence  or  the  sin  fulness  of  the  sensual 
appetite.  Similarly  we  see  that  intense  religious  enthusiasm 
always  conduces  to  the  apotheoses  of  love,  and  sex,  and  to 
excessive  venery,  either  of  indulgence  or  suppression.  Where 
religion  seeks  to  spiritualize  sex-passion,  science  rationalizes  it. 
As  against  moral  sentimentalizing,  a  scientific  ethics  traces 
causes  and  results  and  builds  moral  standards  according  to 
ascertained,  material,  social  consequences. 

All  emotions,  including  those  which  are  generally  classified 
as  "moral,"  have  varieties  of  intensity  according  to  one's  en- 
vironment, education  and  healthy  or  diseased  condition  of  the 
nerves.  Hence  the  same  fact  will  produce  more  intense  emo- 
tions of  approval  or  aversion  in  a  hysterical  person  than 
in  a  healthy  one.  Again,  the  intensity  of  the  emotion 
evoked  by  an  object  is  in  inverse  ratio  to  the  duration  of  the 
stimulation.  That  to  which  we  have  become  accustomed  is  not 
so  shocking  as  it  was  when  it  first  interfered  with  a  fixed  con- 
trary habit  of  thought  or  of  life.  So  it  comes  that  moral  senti- 
mentalizing varies  not  only  as  between  different  individuals, 

114 


OBSCENITY,    PRUDERY    AND    MORALS. 

but  also  differs  at  different  times  in  the  same  individual.  From 
these  facts  arises  the  danger  of  submitting  to  the  guidance  of 
our  "moral"  feeling. 

The  "moral"  emotions  are  intense  as  the  nerves  are  dis- 
eased. The  doctrine  that  men  may  rightfully  claim  to  know 
because  they  feel  and  to  be  firmly  convinced  because  strongly 
agitated,  finds  its  extreme  of  absurdity  in  this,  that  the  certi- 
tude of  a  feeling-conviction  often  reaches  its  highest  degree  in 
the  obsessive  illusions  of  the  insane,  and  the  absurd  conduct  of 
hystericals. 

CONSCIENCE   AN    UNSAFE  GUIDE. 

Individually  and  racially,  according  to  its  pleasurable  or 
painful  effects  on  them,  men  come  to  associate  some  conduct 
with  emotions  of  approval  and  other  conduct  with  emotions  of 
disapproval.  In  these  matters  each  individual  is  a  law  unto 
himself,  and  only  an  unconscious  sympathetic  imitation  induces 
the  superficial  appearance  of  similarity.  As  these  emotional 
"moral  judgments"  become  habitual  by  frequent  repetition,  the 
unreason  of  their  origin  becomes  progressively  less  conspicu- 
ous, and  when  lost  sight  of  humanity  enthrones  this  moral  sen- 
timentalizing on  an  imaginary  pedestal  outside  the  brain,  calls 
it  "conscience,"  and  now  the  emotional  association,  perhaps 
founded  on  diseased  nerves,  is  believed  to  constitute  an  in- 
nate and  therefore  infallible  moral  guide.  Then  "good,  peo- 
ple," ever  confident  in  the  inerrancy  of  their  feelings,  begin  to 
regulate  their  neighbors'  conduct,  especially  their  sex-conduct, 
because  our  emotional  nature  is  more  involved  therein,  and 
because  upon  the  subject  of  sex-ethics  we  have,  on  that  ac- 
count, been  less  accustomed  to  reason  than  upon  any  other  sub- 
ject. Here  moral  sentimentalizing  is  most  natural  and  most 
pernicious,  precisely  because  it  is  here  sure  to  be  least  "tainted" 
by  right-reason. 

The  mistake  in  all  this  popular  method  of  arriving  at  "mor- 
al truth"  lies  in  the  fact  that,  like  the  insane,  we  ascribe  to  con- 
duct those  qualities  which  are  mere  associated  emotional  states 
of  the  perceiving  mind.  To  cease  the  objectivizing  of  our  emo- 
tional "moral  judgments"  is  the  beginning  of  rational  ethics, 
and  the  highest  degree  of  it  will  have  been  reached  when  all 
moral  sentimentalizing  shall  have  been  abolished  and  each  in- 
dividual, from  his  own  perfect  knowledge  of  natural  law,  in 
which  I  include  natural  justice,  shall  no  longer  have  the  desire 
to  live  contrary  to  it. 

We  shall  never  be  able  to  disnense  with  those  mental  proc- 

115 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

esses  which  produce  what  we  call  conscience,  but  we  will  ap- 
proach a  higher  and  better  humanity  only  in  so  far  as  we  abol- 
ish from  our  own  lives  the  authority  of  that  conscience  which 
is  only  moral  sentimentalizing,  and  in  lieu  of  that  authority  en- 
throne a  pure  cold  logic  machine  which,  without  artificial  hu- 
man restraint,  shall  control  our  self-regarding  action  according 
to  natural  law,  and  our  social  conduct  according  to  the  nearest 
approximation  to  natural  justice  of  which  our  minds  are  ca- 
pable of  conceiving.  When  we  have  abolished  moral  senti- 
mentalizing, have  acquired  exact  and  complete  information  as 
to  what  is  natural  law,  and  what  is  required  of  us  by  exact 
natural  justice  and  when  we  shall  live  in  perfect  accord  with 
these  requirements,  the  millennium  will  be  at  hand  and  govern- 
ment will  cease  to  have  any  functions  to  perform.  Until  then 
we  can  only  work  with  the  view  of  approximating  this  unat- 
tainable ideal  view,  each  of  us  striving  to  promote  it  in  others, 
while  endeavoring  to  realize  it  in  our  own  lives. 

It  is  unreasoned  moral  sentimentalism  and  not  ethics  which 
upholds  the  laws  under  discussion.  It  was  an  unreasoned 
moral  sentimentalism  and  not  ethics  which  in  the  past  ages  up- 
held other  literary  censorship  and  abridged  intellectual  free- 
dom. It  was  unquestionably  the  intention  of  the  framers  of 
our  constitutions  to  make  that  impossible.  Shall  our  constitu- 
tions be  judicially  amended  so  as  to  perpetuate  and  make  pos- 
sible the  further  extension  of  mere  psychologic  crimes?  That 
is  the  all-important  question. 

The  evil  consequences  of  this  moral  sentimentalism,  and 
prudish  snobbery  cannot  be  overestimated.  Here  I  cannot  ad- 
equately exhibit  it  but  I  can  point  to  a  few  concrete  facts  to 
show  how  our  compulsory  ignorance  through  legalized  prudery 
works  for  human  ill. 

IGNORANCE  OF  THE  MEDICAL  PROFESSION. 

It  is  an  unwarranted  superstition  that  the  members  of  the 
medical  profession  are  safe  and  intelligent  guides  and  in- 
structors in  matters  of  sex.  They  have  adequate  knowledge 
to  give  superficial  instruction  to  children  about  the  physiology 
and  hygiene  of  sex,  and  they  know  a  little  about  the  most 
common  forms  of  venereal  infection.  But  when  it  comes  to 
dealing  with  the  intricate  social  problems  involving  sexual  psy- 
chology most  of  them  are  in  a  wilderness  of  impenetrable  dark- 
ness and  ignorance,  and  the  few  specialists,  who  have  gathered 
a  few  nuggets  of  truth  from  years  of  work  with  sexual  psy- 
chopaths, are  seldom  given  an  opportunity  to  spread  that 

116 


OBSCENITY,    PRUDERY    AND    MORALS. 

knowledge  even  among  their  professional  brethren.  The  re- 
sult is  that  upon  the  gravest  social-sex-problems  of  the  future 
the  average  physician  is  more  ignorant  than  many  laymen  with 
a  variety  of  "worldly"  experience.  I  charge  this  ignorance  to 
be  a  fact,  and  to  be  due  almost  entirely  to  prudery,  and  a 
potent  cause  of  vice.  The  charge  is  a  grave  one,  and  I  must 
adduce  some  proof. 

I  will  begin  by  quoting  from  a  recent  Medical  Journal 
showing  the  deliberate  suppressing  of  sexual  discussion  even 
within  the  profession,  and  also  showing  their  reason  for  it. 
These  are  the  words  of  Prof.  Wm.  F.  Waugh : 

"We  do  not  approve  of  making  a  feature  of  discussion  and 
investigation  of  the  sexual  relations.  We  fully  grant  their  im- 
portance and  the  need  of  their  study.  Men  and  women  are 
cursing  the  day  they  were  born,  are  fighting,  going  insanet 
driving  others  insane,  making  themselves  devils  and  earth  a 
hell,  all  for  want  of  the  knowledge  that  can  only  come  from  a 
free  and  untrammelled  discussion  of  sexual  physiology  and 
pathology,  by  those  who  are  competent.  But  this  is  exactly 
what  is  not  to  be  had  under  present  conditions.  No  such  dis- 
cussion is  possible  in  any  publication  that  circulates  by  post  to 
a  general  public ;  hence  any  attempt  in  that  direction  is  sure  to 
be  futile.  It  is  not  that  the  attempt  to  carry  it  on  will  surely 
bring  trouble — to  a  man  of  the  stuff  before  us,  martyrdom 
holds  out  allurements  not  to  be  resisted — it  is  because  of  cer- 
tain failure  and  wasted  efforts  sadly  needed  in  directions 
where  success  is  possible.  Our  objection  is  not  prudent  cow- 
ardice but  calculating  utilitarianism. 

"There  is  this  to  be  said  about  discussions  of  sexual  mat- 
ters: as  one  goes  further  into  the  topic,  his  viewpoint  alters. 
The  limits  he  first  set  to  what  is  permissible  in  the  discussion 
recede,  until  things  appear  as  a  matter  of  course,  that  at  first 
we  would  unhesitatingly  have  denounced  as  obscene.  Then 
he  is  called  to  face  a  charge  that  is  in  itself  a  disgrace.  And 
we  sympathize  with  a  friend  who  asked  for  vaccination  be- 
cause he  preferred  to  'die  of  a  clean  disease/  Once  there  was 
a  soldier,  noted  throughout  his  division  for  his  many  heroic 
exploits.  Time  and  again  he  braved  and  escaped  dangers  that 
daunted  the  boldest,  but  he  seemed  ever  to  hold  a  charmed 
life.  At  last  he  was  tremendously  kicked  by  a  big  mule,  and 
this  time  death  was  inevitable.  When  informed  of  his  fate, 
to  the  amazement  of  all  he  burst  into  tears.  Seeing  the  con- 
tempt on  his  comrades'  faces,  he  exclaimed:  'It's  not  that, 

117 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

boys ;  not  that  I  am  afraid  to  die ;  but  after  all  the  high  and 
mighty  chances  of  dying  I've  had,  to  be  kicked  to  death  by 
an  infernal  long-eared  heehawing  son  of  a  jackass!'  Same 
as  to  Comstock."7 

I  have  had  it  upon  the  authority  of  one  of  the  most  widely 
known  scientists  of  America,  that  many  other  Medical  Jour- 
nals hold  substantially  the  same  attitude  to  the  discussion  of 
sexual  topics.  The  silence  is  the  natural  result  of  an  uncertain 
statute,  conferring  arbitrary  power  upon  stupid  humans  by  the 
uncertainty  of  its  criteria  of  guilt.  Being  ignorant  himself,  the 
physician,  like  our  moralist  for  revenue,  profits  by  the  general 
ignorance  and  so  joins  in  the  opposition  to  sexual  intelligence 
by  a  postal  censorship. 

In  the  Medical  Council  for  October,  1908,  is  an  article  on 
"How  shall  we  advise  our  boys  on  the  question  of  sexual  and 
moral  prophylaxis?"  by  Prof.  Frederic  R.  Sturgis.  He  is  the 
author  of  "Sexual  Debility  in  Man."  other  books  and  numer- 
ous essays  in  medical  journals.  He  was  formerly  Clinical 
Professor  of  Venereal  diseases  in  the  Medical  department  of 
the  University  of  the  City  of  New  York  and  of  the  Post 
Graduate  Medical  College;  sometime  visiting  surgeon  of  the 
venereal  division  of  the  city  hospital,  Blackwell's  Island,  and 
has  attained  great  distinction  in  his  profession.  (See  Phy- 
sicians and  Surgeons  of  America,  Edition  of  1906,  p.  326). 
When  the  manuscript  was  first  submitted  to  the  editor  he  was 
in  doubt  as  to  its  availability,  because  the  uncertainty  of  the 
statute  made  it  impossible  for  him  to  find  out  if  it  were  mail 
able.  In  this  perplexity  he  submitted  the  manuscript  to  the 
Post  Office  authorities,  and  was  told  that  it  was  not  mailable. 
After  expurgation  it  was  published  as  above  indicated.  So  it 
has  now  come  to  pass  that  a  layman  to  the  medical  profes- 
sion occupying  a  clerical  position  in  the  Post  Office  Depart- 
ment decides  what  the  doctors  may  be  permitted  to  publish  or 
read  upon  sexual  subjects.  Future  generations  will  look 
back  with  amazement  at  the  cowardice  and  stupidity  of  a  pro- 
fession and  of  a  general  public  which  submitted  without  pro- 
test of  such  a  censorship  over  the  literary  output  of  one  of  the 
most  distinguished  specialists  in  the  United  States.  Had  Dr. 
Sturgis  told  the  lie  that  no  sexual  irregularities  exist,  or  had 
he  advised  every  one  to  lie  to  their  sons  about  the  subject  of 
sex,  so  as  not  to  run  counter  to  the  moral  sentimentalizing  of 
our  ascetical  theologasters,  his  falsehoods  would  have  passed 

'Am.  Journal  of  Clinical  Medicine,  May,  1907.     Prof.  Wm.  F.  Waugh. 

118 


the  cer 


OBSCENITY,    PRUDERY    AND    MORALS. 


the  censorship.  But  having  a  wide  experience  in  such  matters 
he  preferred  to  portray  our  human  sexuality  as  he  found  it, 
and  to  tell  parents  to  tell  the  whole  truth  about  it  to  their  sons. 
This  is  the  unpardonable  sin  in  the  code  of  our  moral  tinkers 
for  revenue,  and  so  one  physician  may  not  even  advise  another 
to  tell  his  son  the  whole  truth  as  it  is  conceived  in  the  mind  of 
the  specialist.  Thus  our  purism  most  efficiently  promotes  the 
vices,  the  suppression  of  which  brings  prosperity  to  our  moral- 
ists for  coin. 

POPULAR    IGNORANCE. 

Reform  organizations  such  as  the  Woman  Christian  Tem- 
perance Union,  and  the  National  Purity  Federation,  have 
been  for  years  agitating  the  question  of  giving  instruction  in 
the  public  schools  as  to  the  hygiene  and  physiology  (also 
theology)  of  sex,  because  they  believe  such  instruction  a  mor- 
alizing force.  Some  members  of  the  medical  profession  are 
falling  into  line  as  is  shown  by  the  organization  of  the  Ameri- 
can Society  of  Sanitary  and  Moral  Prophylaxis,  and  kindred 
societies,  and  by  such  action  as  was  recently  taken  by  the  Illi- 
nois Medical  Association.8  But  here  again  prudery  makes  the 
accomplishment  of  this  plan  impossible,  first  because  prudish 
public  sentiment  won't  tolerate  such  instruction,  and  secondly, 
even  if  it  did,  thanks  (?)  be  to  prudery,  there  are  none  willing 
or  competent  to  teach.  Dr.  Helen  C.  Putman,  of  Providence, 
R.  I.,  quotes  two  leading  educators,  in  sympathy  with  sexual 
education,  as  saying:  "I  know  no  men  in  the  schools  of  my 
city  and  but  few  women,  whom  I  would  be  willing  to  have 
talk  on  sex  matters  to  my  boy  and  girl."  Dr.  Putman  adds: 
"I  could  quote  others."  She  calls  attention  also  to  the  fact 
that  prudery  has  excluded  the  subject  of  sex  hygiene  from 
text  books,  and  from  the  curriculum  of  the  normal  school, 
and  consequently  from  the  teacher's  mind.  She  then  shows  by 
other  investigations  how  the  legalized  and  unlegalized  prudery 
have  produced  a  condition  of  affairs  where  none  are  com- 
petent to  instruct.9 

The  literature  upon  the  subject  of  sex  which  is  prepared 
for  general  consumption  is  practically  all  either  useless  or 
pernicious,  and  always  from  prudish  causes.  On  the  one  hand, 
because  prudery  compels  general  ignorance,  we  have  developed 
a  class  of  physicians  who  thrive  by  misinformation  which 
scares  the  ignorami,  systematically  created  by  us,  into  the  net 
of  the  quack. 

"Medical    Record,    Oct.    12th,    1906,    pp.    594    to   600. 

"Boston    Medical  and   Surgical  Jonrral,   Sept.   31st,   1907,  p.   132. 

119 


OBSCENE   LITERATURE    AND    CONSTITUTIONAL    LAW. 

Another  class,  who  are  almost  as  culpable,  systematically 
obtain  money  under  false  pretences  by  advertising  and  selling 
sex-books.  This  class  of  books  are  sold  on  false  representation, 
more  or  less  definitely  made,  that  they  will  give  some  helpful 
and  detailed  information  upon  one's  concrete  personal  prob- 
lems. Instead  of  answering  the  questions,  which  as  young 
men  and  women  we  wanted  answered  and  had  a  right  to  know 
about,  the  purchaser  receives  a  little  moral  sentimentalism, 
some  stupid  and  often  truthless  dogmas,  which,  together  with 
some  that  is  really  true,  is  promptly  disregarded,  because  no 
convincing  reasons  accompany  the  information.  After  the 
reading  of  such  "purity"  books,  so  well  filled  with  vague  and 
mystifying  phrases,  which  mean  absolutely  nothing  to  those 
who  do  not  already  know  what  is  sought  to  be  hinted  at,  one 
is  convinced  that  he  has  been  robbed  of  his  money  without 
being  enlightened,  and  the  young  come  from  the  reading  of 
these  books  feeling  more  mystified  and  helpless  than  ever  be- 
fore, over  the  personal  problem. 

Of  another  class  of  books,  Pres.  G.  Stanley  Hall,  of  Clark 
University,  has  this  to  say:  "Realizing  that  God  and  nature 
have  wrought  an  indissoluble  bond  between  love  and  religion, 
these  writers  rely  upon  conversion,  confirmation,  prayer,  or 
new  resolutions,  while  some  add  an  appeal  to  the  sense  of 
honor.  There  can  be  no  doubt  of  the  good  intention  of  the 
writers  of  this  class.,  nor  that  they  have  done  good,  but  to  me 
they  all  seem  to  have  more  zeal  than  knowledge."  The  ab- 
sence of  knowledge  is  again  due  to  the  prudery  which  makes 
the  acquisition  of  satisfying  knowledge  difficult  or  impossible. 
He  might  also  have  quoted  Jonathan  Edwards,  Bishop  Laving- 
ton,  Rev.  S.  Baring  Gould,  Dr.  Spurgeon,  and  innumerable 
other  clergymen  to  the  effect  that  many  of  this  class  of  re- 
formers are  ignorantly  and  unconsciously  developing  in  others 
an  abnormal  lewdness,  by  the  very  excesses  of  emotional  en- 
thusiasms which  they  work  into  their  methods  of  religious  re- 
form.10 

Dr.  Hall  continues  thus :  "The  last  class  of  books  that 
stand  out  clearly  are  writings  that  appear  to  be  by  mothers  or 
aunts,  for  boys,  and  which  are  pervaded  by  sentiment,  poetic, 
religious,  and  aesthetic,  the  interests  of  posterity  and  the  chiv- 
alry which  the  true  gentleman  should  feel  for  those  of  the  other 
sex.  Such  appeals  may  effect  girls,  but  the  boy,  at  the  callow, 
pin-feather  age  of  fourteen,  is  rarely  aesthetic,  and  if  at  this 

10"Religion  and  Sensualism"  in  vol.  3,  p.  16,  of  Amer.  Jour,  of  Religious 
Psychology. 

120 


OBSCENITY,    PRUDERY    AND    MORALS. 

age  he  can  be  truly  called  a  perfect  gentleman  there  is  some- 
thing wrong  with  him." 

Thus  far  I  approve  of  Dr.  Hall's  criticism  of  purity  lit- 
erature, made  almost  useless  by  prudishness.  Now  let  me 
show  you  how  the  same  cause  has  also  impaired  the  moral 
good  which  he  designed  by  his  article.11 

He  is  trying  to  enlighten  parents  about  what  they  must 
tell  their  children.  The  boy  must  be  told  of  "the  fact  that 
not  one,  but  both,  of  the  most  prevalent  diseases  due  to  im- 
purity of  life  are  of  the  gravest  danger."  Parents  already 
familiar  with  these  diseases  did  not  need  to  be  told  of  their 
danger.  His  article  was  written  for  that  great  mass  who 
know  nothing  about  them  and  who  on  reading  Dr.  Hall's  arti- 
cle might  wonder  whether  he  meant  the  croup,  scarlet  fever 
or  small-pox.  Had  he  expressed  his  thought  in  the  homely 
words  we  probably  all  heard  in  our  youth,  the  uninformed 
reader  whom  he  was  trying  to  reach  might  have  understood 
what  he  meant.  But  if  he  had  found  a  publisher  at  all,  legal- 
ized prudery  would  have  sent  him  to  jail.  Had  he  used  the 
scientific  words  gonorrhea  and  syphilis,  the  reader  might  at 
least  have  found  out  what  he  meant,  by  using  a  medical  dic- 
tionary. But,  as  it  is,  prudery  so  dominated  even  this  eminent 
scientist  that  he  wrote  a  message  designed  to  curtail  vice,  but 
which  in  large  part  was  made  useless  by  the  avoidanc'e  of 
direct  phrase  and  scientific  exactness,  such  as  he  would  have 
used  in  discussing  every  other  subject.  Thus  again  does  pru- 
dery encourage  vice. 

Not  long  since  I  attended  a  meeting  of  the  American  So- 
ciety of  Sanitary  and  Moral  Prophylaxis,  where  Professor 
Wilder,  of  Cornell  Medical  College,  was  announced  to  lecture 
upon  the  desirability  of  educating  the  young  in  matters  of  sex. 
He  had  prepared  a  discourse  to  show  the  great  evils  coming 
from  ignorance.  When  he  got  to  that  portion  where  from 
medical  journals  and  kindred  sources  he  apparently  was  pre- 
paring to  make  concrete  statements  of  facts  about  venereal  in- 
fection and  its  result,  he  became  visibly  embarrassed,  and 
scarcely  having  begun  he  announced  that  he  hadn't  the  courage 
to  proceed  according  to  his  original  intention.  Here  then  is  a 
scientist  of  international  prominence,  so  overawed  by  a  con- 
sciousness of  the  general  prudery  which  has  developed  with 
and  from  our  legalized  prudery,  that  he  must  withhold  from 
an  audience  gathered  to  receive  it  information  of  the  greatest 

^Ladies'    Home    Journal,    Sept.,    1907,    p.    26. 

121 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

value.  The  resultant  ignorance  upholds  these  laws,  promotes 
crime  and  disease,  and  these  are  a  direct  evil  result  of  our  le- 
galized prudery. 

The  moral  snobbery  and  legalized  prudery  of  the  profes- 
sional vice-hunter  and  moralist  for  revenue  is  based  wholly  on 
stupid  moral  sentimentalizing,  and  not  at  all  upon  any  rational 
or  scientific  ethics,  and  has  made  it  impossible  for  parents  to 
qualify  themselves  as  instructors  for  their  children,  and  those 
children  are  kept  in  ignorance  upon  a  subject  where  ignorance 
is  the  most  potent  for  evil,  and  yet  that  ignorance  is  lauded  as 
a  virtue,  though  it  very  often  leads  to  ruin,  as  is  shown  by  the 
records  of  our  insane  asylums. 

These  miscalled  "purity"  associations  primarily  destroy 
the  opportunity  of  all  for  gratifying  a  healthy  and  natural  cu- 
riosity and  thus  of  necessity  they  aid  in  developing  morbidity 
in  relation  to  sex.  Out  of  this  morbidness,  created  mainly 
through  their  efforts,  comes  the  market  for  that  erotic  and 
prurient  literature  which  the  salaried  vice-hunters  profess  to 
deplore,  and  which  they  unconsciously  foster  and  gladly  profit 
by.  With  all  restrictions  removed  and  general  opportunity  for 
public-school  education  in  sex  matters,  the  second  generation 
would  be  so  healthy-minded  as  to  destroy  all  market  for  the 
stuff  which  the  "purists"  profess  so  much  to  abhor. 

In  France,  although  general  sexual  education  is  wanting, 
it  is  openly  asserted  that  the  greater  part  of  the  demand  for 
prurient  literature  and  art  comes  from  American  and  English 
tourists,  and  customers.  I  am  aware  that  some  of  the  "pur- 
ists" profess  to  believe  that  there  should  be  education  about 
matters  of  sex,  given  to  young  people,  but  they  invariably  mean 
by  this  the  theology  of  sex  and  not  sexual  science,  which  is  a 
very  different  thing.  In  my  view  every  human  being  should 
have  an  unlimited  opportunity  for  knowing  all  that  there  is  to 
be  known  about  every  part  of  the  human  anatomy,  and  that 
to  preach  against  such  intelligence,  or  impede  its  spread  is 
always  an  outrage  and  always  productive  of  evil. 

Another  way  in  which  this  evil  manifests  itself  lies  in 
this,  that  the  "purists'  "  efforts,  by  their  insane  over-valuation 
of  sex  importance,  always  destroy  people's  perspective,  much 
to  the  public  injury.  If  there  had  been  no  attempted  interfer- 
ence with  "Mrs.  Warren's  Profession,"  most  people  would  have 
seen  in  that  play  only  the  presentation  of  a  social  problem,  by 
the  consideration  of  which  all  of  the  visitors  to  the  theater,  and 

122 


OBSCENITY,    PRUDERY    AND    MORALS. 

society  at  large,  might  have  profited.  After  and  by  virtue  of 
the  stupid  protest  of  morbid  prudes,  who  were  so  obsessed  by 
their  own  lewdness  that  they  could  see  nothing  but  the  sensual 
features  of  the  play,  it  at  once  became  impossible  for  the  great 
mass  of  people  to  see  any  moral  problem  in  it.  From  that 
time  on  they  were  induced  by  the  very  outcry  of  the  "purists" 
to  concentrate  their  attention  on  a  watch  for  only  its  sensual 
stimuli.  The  same  thing  is  true  of  their  efforts  to  suppress 
the  nude  in  art.  By  their  very  effort  lewd  moralists  for  rev- 
enue make  it  impossible  for  a  great  many  people  to  see  any- 
thing but  the  sensual  features  of  a  picture,  whereas,  if  left 
alone  without  this  interference  from  prurient  prudes,  which 
in  such  matters  always  misdirects  the  public  attention,  it  would 
be  possible  for  most  people  to  see  the  beauties  of  form  and  of 
physical  perfection. 

Let  me  say  right  here  that  I  am  not  devoting  myself  to 
criticising  Mr.  Comstock  for  any  mistakes  he  may  have  made 
in  the  exercise  of  an  arbitrary  power,  which  an  outrageous!} 
uncertain  criminal  statute  seems  to  vest  in  him,  and  I  have  no 
patience  with  those  critics  of  Comstockery  who  are  devoting 
themselves  to  criticism  of  Mr.  Comstock,  instead  of  the  condi- 
tions which  he  helps  to  perpetrate  and  which  make  him  possi- 
ble, and  prosperous.  My  complaint  is  most  with  those  stupid 
people  who  by  their  moral  sentimentalizing  are  supporting  the 
arbitrary  power  which  authorizes  his  mistakes.  I  am  not  con- 
cerned in  the  least  as  to  how  that  arbitrary  power  is  exer- 
cised, whether  wisely  or  unwisely.  I  am  very  much  concerned 
that  the  arbitrary  power  itself  should  be  destroyed,  by  making 
the  law  conform  to  the  constitutional  requirements  of  cer- 
tainty in  the  statutory  criteria  of  guilt.  Mr.  Comstock  is  simply 
exercising  his  ordinary  right  of  being  a  moralist  for  revenue 
under  the  opportunities  offered  by  a  stupid  public. 

SEX  IGNORANCE  AND  INSANITY. 

This,  then,  brings  me  to  the  more  unpleasant  features,  which 
relate  to  sexual  insanities,  and  venereal  infection.  No  one 
worthy  to  be  counted  a  worker  for  improved  morals  can  over- 
look these  most  important  phases  of  the  sex  problem.  I  know 
only  the  use  of  the  plain,  direct,  and  scientifically  chaste  man- 
ner of  speech.  It  is  only  by  the  use  of  such  that  I  can  proceed, 
while  I  briefly  recapitulate  some  concrete  facts  known  to  the 
medical  profession,  and  by  me  culled  from  standard  medical 
authorities.  By  every  known  scientific  code  of  ethics,  the 

123 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

morality  of  conduct  is  to  be  judged  by  its  injurious  conse- 
quences. Upon  the  record  that  follows,  and  much  other  kin- 
dred material,  these  damnable  facts  are  all  the  consequences  of 
sexual  ignorance,  and  this  in  turn  is  mainly  the  consequence  of 
our  legalized  suppression  of  sexual  intelligence.  Therefore  I 
charge  our  "moral"  censorship  of  literature  to  be  the  most 
pernicious  influence  in  our  American  life,  and  our  "highly 
respected"  prurient  prudes  the  most  immoral  people  in 
America. 

Picque  found  a  proportion  of  88%  of  gynecological  affec- 
tion among  the  insane,  and  some  have  found  even  more.  It  is 
quite  generally  estimated  that  of  all  insanities  66%  involve  the 
sexual  mechanism  or  functioning.  Where  sex  is  the  primary 
cause  of  the  ultimate  derangement,  sex-intelligence  usually 
could  wholly  preclude  the  evil  consequences,  or  find  an  early 
cure.  In  other  cases  where  there  is  some  sexual  derangement 
it  is  at  first  but  a  symptom  of  mental  ailment,  only  in  turn  to 
become  an  aggravating  cause.  Here  a  greater  intelligence  on 
the  part  of  friends  and  family,  such  as  the  general  dissemina- 
tion of  the  literature  of  sexual  science  would  produce,  will 
enable  them  to  understand  what  now  seems  dubious,  and  impel 
them  to  apply  much  earlier  for  medical  aid,  when  it  would  be 
far  more  efficacious.  Legislators  and  courts  now  treat  the 
sex-pervert  as  a  criminal,  thereby  discrediting  both  our  in- 
telligence and  our  humanity.  In  an  enlightened  community 
we  will  know  that  usually  such  are  diseased,  and  thus  be 
prompted  to  restore  them,  rather  than  wreak  vengeance  upon 
them. 

SUFFERING  OF  THE  VICIOUS  TO  SAFEGUARD  VIRTUE. 

A  study  of  venereal  infection  gives  us  some  appalling  re- 
sults. Every  year  in  our  country  perhaps  hundreds  of  thou- 
sands of  persons  become  its  victims.  Owing  to  public  ignor- 
ance and  a  mawkish  sentimentalism,  many  of  these  persons 
cannot  secure  treatment  from  the  regular  physician,  nor  will 
be  received  in  many  hospitals.  It  is  argued  that  to  make  them 
suffer  the  penalty  of  vice  is  the  best  safeguard  to  virtue.  Even 
if  the  transgressors  were  the  only  sufferers,  it  would  still  be 
an  unpardonable  inhumanity  not  to  cure  them  if  possible, 
because  in  such  cases  they  too  often  suffer  in  the  inverse  ratio 
of  their  familiarity  with  the  vicious.  More  general  educa- 
tion conduces  to  more  justice  in  fitting  the  natural  punishment 

124 


OBSCENITY,    PRUDERY    AND    MORALS. 


to  the  crime.  All  disease  is  the  result  of  some  form  of  vicious 
living,  and  if  we  are  to  be  guided  by  such  irrational  aphorisms 
we  must  abstain  altogether  from  trying  to  relieve  human  suf- 
fering. The  pains  of  dyspepsia  or  rheumatism  must  be  en- 
dured lest  by  their  cure  we  make  vicious  eating  safe ;  dipso- 
mania and  delirium  tremens  must  remain  uncured  lest  we 
make  alcoholic  beverages  safe. 

VENEREAL  INFECTION   AND  SUFFERING  OF  THE  INNOCENT.12 

When  we  come  to  consider  the  suffering  which  is  unneces- 
sarily inflicted  on  the  ignorant  innocent,  by  adherence  to  this 
absurd  dogma,  then  the  public's  indifference  toward  the  cure 
of  venereal  diseases  becomes  almost  criminal.  It  is  not  in- 
frequent that  a  syphilitic  child  will  infect  its  uninformed  nurse, 
or  an  infected  wet  nurse  not  knowing  her  own  condition  trans- 
mits the  disease  to  the  child  under  her  care.  Unnumbered 
persons  become  infected  merely  by  a  common  use  of  eating, 
drinking,  or  toilet  utensils. 

That  you  may  properly  understand  just  how  infamous  is 
the  taboo  which  we  have  placed  upon  this  subject,  let  me  go 
more  into  detail,  and  here  I  charge  you  specially  to  observe 
the  suffering  of  the  innocent.  Eighty  per  cent,  of  the  blind- 
ness of  the  new  born,  and  twenty  per  cent,  of  this  terrible  af- 
fliction from  all  causes,  is  due  to  gonococcus  infection,  as  also 
is  a  large  proportion  of  vulvo-vaginitis  and  joint  affections  of 
children.  Dr.  Neisser  estimates  that  at  present  there  are  in 
Germany  about  30,000  blind  persons  who  owe  their  affliction  to 
^his  cause.  In  America  no  statistics  are  available. 

Pinnard  found  that  in  10,000  consecutive  cases  of  miscar- 
riage or  abortions  42%  were  caused  by  syphilis,  the  remain- 
ing 58%  were  due  to  all  other  causes  combined.  The  mortal- 
ity from  hereditary  syphilis  ranges  from  60  to  80%,  while 
those  who  survive  are  affected  with  degenerative  changes 
which  unfit  them  for  the  battle  of  life.  Syphilis  in  France 
alone  kills  every  year  20,000  children,  producing  7y2%  of  the 
mortality  form  all  causes  combined.  It  is  computed  that  50% 
of  all  gonorrheal  women  are  absolutely  sterile,  and  gonor- 
rheally  infected  men  are  responsible  for  20%  of  involuntary 
sterile  marriages.  Sixty  per  cent,  of  the  children  gestated 

12Practically  all  of  this  information  about  venereal  infection  is  taken  from 
"Social  Diseases  and  Marriage,"  by  Dr.  Prince  Morrow,  and  from  the  publica- 
tions of  the  Am..  Soc.  for  Sanitary  and  Moral  Prophylaxis,  of  which  he  is  President. 
The  State  Medical  Board  of  Indiana  has  recently  issued  a  pamphlet  giving  very 
similar  statistics. 

125 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

by  syphilitic  mothers  die  in  utero,  or  soon  after  birth.  Only 
two  in  five  will  survive  even  through  a  short  life ;  20  to  30% 
of  gonorrheally  infected  women  abort  and  from  45  to  50% 
are  rendered  irrevocably  sterile. 

Fournier's  general  statistics,  embracing  all  classes  of 
women,  show  that  one  in  every  five  syphilitic  women  con- 
tracted syphilis  from  her  husband  soon  after  marriage. 
Among  the  married  females  in  his  private  practice,  in  75%  of 
the  cases  the  disease  was  unmistakably  traced  to  the  husband. 
D.  Bulkley's  statistics,  in  "Syphilis  in  the  Innocent,"  state  that 
in  private  practice  fully  50%  of  all  females  with  syphilis  ac- 
quired it  in  a  perfectly  innocent  manner,  while  in  the  married 
females  85%  contracted  it  from  their  husbands.  The  report 
of  a  medical  committee  of  seven  gave  it  that  in  from  30  to  60% 
of  the  syphilitic  women  who  had  the  disease  it  was  commun- 
icated by  the  husband.  Dr.  Morrow  in  his  experience  in  the 
New  York  Hospital  found  that  70%  of  the  women  who  applied 
for  treatment  for  syphilis  were  married  and  claimed  to  have  re- 
ceived the  disease  from  their  husbands.  60%  of  all  gynocolo- 
gic  surgical  operations  are  chargeable  to  gonococcic  infection. 

To  emphasize  the  danger  which  comes  to  the  innocent  from 
the  infamous  and  ignorant  conspiracy  of  silence,  let  me  quote 
these  awful  words  from  a  specialist  of  high  authority.  He 
says:  "It  may  be  a  startling  statement  but  nevertheless  true, 
that  there  is  more  venereal  infection  among  virtuous  wives 
than  among  professional  prostitutes  in  this  country."  The 
latter,  being  the  more  intelligent  in  such  matters,  use  personal 
propylaxis,  and  secure  treatment  earlier  after  infection,  while 
the  ignorant  virtuous  wife  continues  to  suffer  in  silence.  In 
view  of  this  appalling  condition,  what  are  you  going  to  say 
to  those  moral  sentimentalizers,  who  for  fear  of  making  vice 
safe,  seek  to  penalize  all  announcements  that  venereal  diseases 
can  be  cured?  Will  you  by  education  help  protect  the  inno- 
cent sufferers  or  will  you  through  moral  cowardice  give  silent 
support  to  the  infamous  taboo  upon  sexual  education? 

I  have  now  shown  the  practical  operation  of  the  doctrine 
that  to  make  men  suffer  the  penalties  of  vice  is  the  best  safe- 
guard to  virtue,  yet  if  you  would  issue  general  instructions 
for  the  detection  of  venereal  infection,  or  for  personal  pro- 
phylaxis, all  prurient  sentimentalists  would  say  you  are  mak- 
ing vice  safe,  you  must  go  to  jail  for  your  "obscenity"  and 
the  "immoral  tendency"  of  your  book.  Thus  it  is  that  the  in- 

126 


OBSCENITY,    PRUDERY    AND    MORALS. 

nocent  must  continue  to  suffer,  and  the  family  physician  con- 
tinues to  lie  to  the  wronged  wife,  in  order  to  protect  her  hus- 
band, and  maintain  the  "sanctity"  of  such  a  home.  Infected 
husbands  must  be  screened  at  any  cost  of  suffering  to  the  in- 
nocent wife  and  children,  simply  because  we  are  afraid  that 
someone  will  say  we  are  trying  to  safeguard  vice. 

In  many  states  efforts  have  been  made,  and  have  almost 
succeeded,  the  success  of  which  would  have  made  it  criminal, 
even  in  a  hospital  report  or  a  professional  treatise  on  venereal 
disease,  to  make  it  known  where  or  how  sexual  ailments  could 
be  cured,  and  the  excuse  offered  is  that  such  information  tends 
to  make  vice  safe. 

DEMAND  OPPORTUNITY    FOR    KNOWLEDGE. 

I  have  tried  to  point  out  the  urgency  for  general  education 
and  the  laws  which  preclude  it.  I  cannot  doubt  that  you  are 
quite  convinced  that  the  situation  is  sufficiently  grave  to  de- 
mand an  immediate  change  if  we  would  maintain  a  semblance 
of  purity.  I  submit  that  a  decent  regard  for  the  moral  wel- 
fare of  the  community,  or  for  the  innocent  sufferers  of  vene- 
real infection,  compels  us  to  demand  for  the  general  public 
such  liberty  of  the  press,  and  other  means  of  publicity,  as  will 
protect  each  in  his  right  to  learn  and  to  know,  just  how  terri- 
ble are  the  ravages  of  these  diseases — how  their  presence  may 
be  detected — and  that  they  can  be  cured,  and  their  spread  pre- 
vented. The  practical  legal  question  which  all  this  presents 
is  this:  DOES  THERE  EXIST  ANYWHERE  UNDER  OUR  CONSTITU- 
TIONS ANY  AUTHORITY  VESTED  WITH  POWER  TO  SUPPRESS  SEX- 
UAL INTELLIGENCE,  AND  THUS  BY  LEGALIZED  COMPULSION  IN- 
FLICT SUCH  ILLS  UPON  HUMANITY? 

ON  THE  DANGERS  OF  LIBERTY. 

It  is  perhaps  apparent  now  that  our  present  tests  of  ob- 
scenity are  grossly  ridiculous  in  their  results  if  impartially  ap- 
plied, and  I  am  sorry  to  confess  that  I  cannot  furnish  a  better, 
because  what  is  deemed  objectionable  is  always  a  personal  mat- 
ter which  cannot  be  defined  in  general  terms.  Furthermore, 
no  man  can  tell  a  priori  what  is  of  bad  tendency.  If  you 
have  received  the  right  training  from  your  parents  or  precep- 
tors, even  the  worst  bawdy  picture  may  produce  a  wholesome 
revulsion.  Once  open  the  door  to  all  serious  discussions  of 
sex,  and  soon  the  healthy  curiosity  will  be  satisfied,  which  now 
becomes  morbid  only  from  the  denial  of  satisfaction.  No  one 
thinks  of  caricaturing  the  reproductive  mechanism  of  our  do- 

127 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

mestic  animals  only  because  no  one  has  any  morbid  curiosity 
about  it,  because  there  is  no  concealment.  With  the  develop- 
ment of  healthy  mindedness  through  sexual  education  in  our 
schools,  all  morbidity  of  curiosity  would  disappear  in  one  gen- 
eration. The  demonstration  of  this  is  to  be  found  among  art 
students. 

Years  ago  when  it  was  proposed  to  prohibit  the  sending  of 
abolition  literature  through  the  mails,  because  of  its  "immoral" 
tendency  toward  insurrection,  the  Hon.  John  P.  King,  a 
United  States  Senator  from  the  South,  protested  and  said:  "I 
prefer  the  enjoyment  of  a  rational  liberty  at  the  price  of  vigi- 
lance and  at  the  risk  of  occasional  trouble,  by  the  error  of  mis- 
guided or  bad  citizens,  to  the  repose  which  is  enjoyed  in  the 
sleep  of  despotism."  With  this  I  concur.  Liberty  has  dangers 
of  its  own,  which  we  must  overcome,  or  forego  progress.  If  we 
have  confidence  that  we  have  right  on  our  side,  we  need  not 
fear  open  discussion  and  warfare  with  error. 

This  then  concludes  the  several  preliminary  discussions, 
which  seemed  necessary  to  clear  away  some  of  the  mists  of  our 
moral  sentimentalism,  and  brings  us  to  the  more  direct  dis- 
cussion of  the  several  constitutional  questions  involved. 


128 


CHAPTER  VII. 

ON  THE  IMPLIED  POWER  TO  EXCLUDE  "OBSCENE" 
IDEAS  FROM  THE  MAILS.1 

Syllabus  of  the  Argument:  The  Power  to  create  a  postal 
system  implies  the  power  to  pass  all  laws  "necessary  and 
proper"  to  the  end  of  executing  the  power  to  establish  post 
offices  and  post  roads,  but  it  does  not  authorise  Congress  under 
the  pretext  of  creating  and  maintaining  post  offices  to  make  the 
postal  system  a  means  to  the  accomplishment  of  ends  not 
entrusted  to  the  care  of  Congress.  The  very  creation  of  a  postal 
system  necessarily  involves  a  determination  of  the  gross  physical 
characteristics  of  that  which  is  to  be  carried  or  excluded  and 
therefore  implies  the  power  to  determine  such  qualities.  A  like 
implication  cannot  be  made  in  favor  of  a  power  to  determine 
what  are  mailable  ideas,  because  a  differential  test  of  mail  mat- 
ter, based  upon  the  opinions  transmitted  through  the  mails,  or 
the  psychological  tendencies  of  such  opinions  upon  the  ad- 
dressee of  the  mails,  or  a  differential  test  based  upon  an  idea 
which  is  not  actually  transmitted,  but  is  suggested  by  one  that 
is  transmitted,  bears  no  conceivable  relation  to  the  establish- 
ment of  post  offices  or  post  roads  for  the  transmission  of 
physical  matter  only. 

It  may  be  admitted  that  the  power  granted  implies  the  power 
to  preclude  the  use  of  the  mails  as  an  essential  element  in  the 
commission  of  a  crime  otherwise  committable,  and  over  which 
Congress  has  jurisdiction  (such  as  fraud  and  gambling), 
within  the  geographical  limits  of  its  power.  But  it  is  claimed 
that  the  power  of  Congress  is  limited  to  the  use  of  means  which 
are  a  direct  mode  of  execution  of  the  power  to  establish  post 
offices  and  post  roads,  or  some  other  power  expressly  granted, 
and  it  cannot,  under  the  pretence  of  regulating  the  mails,  ac- 
complish objects  which  the  Constitution  does  not  commit  to 
the  care  of  Congress.  Such  an  unconstitutional  object  is  the 

^Central  Law  Journal,  V.  65,  p.  177,  Sept.  6,  1907. 

129 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

effort  of  Congress,  under  the  pretext  of  regulating  the  mails,  to 
try  to  use  the  mails  as  a  means  to  control  the  psycho-sexual 
condition  of  postal  patrons. 

The  present  postal  laws  against  "obscene"  literature,  as 
the  same  are  judicially  administered,  make  the  mailability  of 
matter  depend  not  only  upon  the  so-called  "obscenity"  of  that 
which  is  actually  transmitted  through  the  mails,  but  also  upon 
ideas  not  actually  transmitted,  but  according  to  their  potential 
capacity  for  suggestiveness  to  the  prurient,  though  the  words 
and  sentiments  in  themselves  are  free  from  objection.  The 
question  is,  has  Congress  the  implied  power  to  make  such  regu- 
lations? Three  thousand  lawyers  have  been  employed  by  the 
defendants  in  as  many  cases,  and  none  of  these  have  thought 
it  worth  while  to  question  the  existence  of  such  a  power. 

This  discussion  involves  only  two  clauses  of  the  constitu- 
tion, viz :  The  power  "to  establish  post  offices  and  post  roads" 
and  the  authority  "to  make  all  laws  necessary  and  proper"  to 
the  establishment  of  post  offices  and  post  roads.  It  has  become 
the  statement  of  an  axiom  to  say  that  "the  national  govern- 
ment possesses  no  powers  but  such  as  have  been  delegated  to 
U."2  "Whenever,  therefore,  a  question  arises  concerning  the 
constitutionality  of  a  particular  power,  the  first  question  is, 
whether  the  power  be  expressed  in  the  constitution.  If  it  be, 
the  question  is  decided.  If  it  be  not  expressed,  the  next  in- 
quiry must  be  whether  it  is  properly  an  incident  to  an  express 
power  and  necessary  to  its  execution.  If  it  be,  then  it  may  be 
exercised  by  congress.  If  not,  congress  cannot  exercise  it."3 
The  constitution  nowhere  expressly  confers  upon  congress  the 
power  legislatively  to  discriminate  between  "moral"  and  "im- 
moral" opinions. 

IS  THE  IMPLIED   POWER  TO  REGULATE  UNLIMITED? 

I  now  momentarily  waive  the  contention  that  no  such  qual- 
ities belong  to  any  opinions.  The  question  then  is,  has  congress 
the  implied  power  to  create  a  "moral"  censorship  over  the  opin- 
ions which  may  be  transmitted  through  the  mails,  which  im- 
plied power,  if  it  exists,  must  arise  wholly  from  the  power  to 
maintain  post  offices  and  post  roads?  The  power  to  establish 
a  postal  system  and  to  make  all  "necessary  and  proper"  laws 
incident  thereto,  undoubtedly  implies  the  unavoidable  exercise 

'Oilman  v.  Philadelphia,  70  U.  S.  713-725;  Martin  v.  Hunter's  Lessee,  1  Wheat. 
804-326;  M'Culloch  v.  Maryland,  4  Wheat.  405;  Pacific  Ins.  Co.  v.  Soule,  7  Wall. 
444;  United  States  v.  Cruikshank,  92  U.  S.  542. 

•Story's  Commentaries  on  the  Constitution. 

130 


of  the  power  to  determine  the  gross  physical  characteristics  of 
the  matter  to  be  transmitted  and  excluded.  But  does  it  follow 
that  in  other  particulars  there  is  any  implied  power  to  regulate 
the  contents  of  the  mails,  and  if  so,  is  it  unlimited?  Has  con- 
gress the  power  to  say  that  nothing  at  all  be  carried  which  is 
not  written  or  printed  upon  paper  produced  at  a  particular 
factory,  and  to  penalize  the  transmission  of  otherwise  un- 
distinguishable  paper  coming  from  a  rival  factory?  Clearly 
not.  If  the  paper  in  all  its  physical  characteristics  is  undis- 
tinguishable,  a  discriminating  judgment  based  upon  its  differ- 
ent manufacturers,  who  themselves  bear  precisely  the  same 
relationship  to  the  government  and  its  postal  system,  cannot 
be  a  "necessary  and  proper"  power  impliedly  existing  in  con- 
gress, because  a  decision  upon  that  question  is  not  necessary 
to  either  the  establishment  or  maintenance  of  post  offices  and 
post  roads,  nor  of  any  other  power  expressly  delegated  to  the 
United  States.  To  assert  the  contrary  is  to  make  the  control  of 
postal  regulations  a  political  prize,  to  be  used  in  securing  a 
monopoly  in  the  manufacture  of  paper,  and  such  an  evil  pos- 
sibility is  not  to  be  tolerated,  or  called  into  being  by  any  judicial 
process  of  unnecessarily  creating  implied  power.  When  it  is 
"necessary  and  proper"  as  an  incident  to  any  other  expressed 
grant  of  power,  it  is  possible  that  the  postal  system,  and  the 
mode  of  its  regulation,  by  necessary  implication,  could  be  made 
subservient  thereto.  Thus  congress  has  undoubted  power  to 
pass  many  criminal  laws,  and  might,  perhaps,  prescribe  depri- 
vation of  mail  privileges  as  a  penalty  to  be  inflicted  upon  con- 
viction, or  it  probably  could  prohibit  the  use  of  the  mails  as  an 
instrument  directly  contributing  an  essential  factor  in  the  act- 
ual commission  of  such  other  actual  crime,  within  the  power  of 
congress  to  create.  But  does  it  follow  that  therefore  con- 
gress also  has  the  power  arbitrarily  to  deny  the  use  of  an  es- 
tablished postal  service  to  all  citizens  who  bear  the  name  of 
"Smith,"  or  who  do  not  believe  in  Christian  science,  or  do  not 
approve  of  a  protective  tariff?  Clearly  not.  Because  a  de- 
cision based  arbitrarily  upon  the  name  of  the  postal  patron,  or 
upon  his  characteristics  of  opinion  merely,  is  not  "necessary 
and  proper"  to  the  establishment  of  post  offices  and  post  roads, 
nor  to  the  exercise  of  any  other  expressed  power  of  the  fed- 
eral government.  Admitting  now  the  "necessary  and  proper" 
implied  power  in  congress  to  determine  the  geographical  ex- 
tent and  distribution  of  post  offices  and  post  roads,  and  the  un- 

131 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

avoidable,  and  therefore  "necessary  and  proper"  implied  power 
to  determine  the  gross  physical  characteristics  of  what 
may  be  transmitted,  does  it  follow,  all  other  conditions, 
including  the  physical  characteristics,  being  the  same,  that 
congress  has  the  power  arbitrarily  to  make  discriminations 
according  to  arbitrary  standards,  based  upon  the  varying  intel- 
lectual valuations  of  conflicting  opinions,  or  opinions  of  sus- 
pected conflicting  tendencies?  Can  the  literature  of  Catholics, 
free-lovers,  theists,  and  agnostics  be  excluded  as  unapproved 
by  the  law-making  power,  while  the  literature  of  evangelicals, 
polygamists  and  Christian  scientists  is  transmitted  because 
approved  ?  May  the  literature  of  trades  unionism  be  excluded 
and  that  of  the  employer's  association  transmitted?  May  the 
literature  favoring  the  single  tax,  free  trade,  or  state  owner- 
ship of  railroads  be  excluded,  and  those  favoring  an  income 
tax,  protective  tariff  and  the  repeal  of  anti-trust  laws,  be  trans- 
mitted? Has  congress  the  power  to  so  regulate  the  mails  as 
to  transmit  all  literature  "tending"  to  a  centralization  of  power, 
progressive  tyranny,  moralization  by  force  and  that  which 
"tends"  to  foster  the  ascetic  ideal  of  sexual  life,  while  it  ex- 
cludes all  matter  which  "tends"  toward  decentralization  and 
personal  liberty,  or  "tends"  to  foster  unconventional  ideas  of 
sex-life,  all  other  conditions  being  the  same?  May  the  litera- 
ture of  prohibitionists  be  excluded,  while  that  of  their  op- 
ponents is  transmitted?  Clearly,  if  congress  has  the  implied 
power  to  do  one  of  these  things,  it  has  the  implied  power 
to  do  them  all,  because  they  all  bear  the  same  relation, 
or  more  accurately,  no  relationship,  to  the  establishment  of 
post  offices  and  post  roads.  We  are  not  concerned  with  the 
question  as  to  the  likelihood  of  such  a  power  being  exercised 
to  the  fullest,  nor  are  we  concerned  with  the  tremendous  pos- 
sibility for  evil  which  might  come  from  the  abuse  of  so  extra- 
ordinary a  power,  though  that  would  make  us  hesitate  to 
affirm  its  existence,  unless  the  implication  was  an  unavoidable 
one.  Again  we  ask,  has  congress  any  such  implied  power? 
Clearly  not,  because  its  exercise  bears  no  "necessary  and 
proper"  or  conceivable  relation  to  the  establishment  of  post 
offices  and  post  roads,  nor  to  any  other  enumerated  power  of 
the  federal  government. 

HOW    IS    THE    IMPLIED    POWER    LIMITED? 

Let  us  abandon  the  discussion  from  the  standpoint  of  en- 
grafting necessary  exceptions  upon  an  assumed  unlimitedness 

132 


IMPLIED  POWER  TO    EXCLUDE  "  OBSCENE"   IDEAS    FROM  MAIL. 

of  the  implied  power,  and  discuss  the  matter  by  developing 
the  implications  from  the  constitution  itself.  Congress  is  not 
expressly  authorized  by  the  constitution  to  determine  even  the 
gross  physical  qualities  of  mail  matter,  but  that  power  is  un- 
avoidably implied  from  the  authority  to  establish  post  offices 
and  post  roads,  because  the  latter  cannot  be  executed  without 
the  exercise  of  a  discretion  as  to  the  physical  characteristics  of 
postal  matter.  Can  the  same  be  said  about  a  discretion  as  to 
the  psychologic  tendencies  of  ideas  expressed  upon  the  trans- 
mitted matter?  Congress  is  not  expressly  authorized  to  dis- 
criminate according  to  the  intellectual  or  "moral"  qualities  of 
that  which  may  be  expressed  upon,  or  suggested  by  that 
which  is  transmitted  through  the  mails.  Congress  can  have 
the  implied  power  to  make  such  differentiations  according 
to  psychologic  standards  only  if  post  offices  and  post  roads  are 
impossible  of  establishment  and  maintenance  without  the  im- 
plication of  such  power.  But  if  on  the  contrary,  it  is  essential 
to  the  establishment  or  maintenance  of  post  offices  and  post 
roads,  that  congress  exercise  a  legislative  discrimination  be- 
tween mail  matter,  not  only  according  to  the  opinions  actually 
transmitted,  but  also  according  to  the  psychologic  tendency  of 
that  which  is  only  suggested  by,  but  not  expressed  in  the  mat- 
ter actually  transmitted,  then  such  power  will  be  implied.  A 
mere  analytical  statement  of  the  question  shows  how  absurd  is 
the  claim  of  such  a  power. 

Every  publication  undoubtedly  suggests  different  things  to 
many  different  people.  In  each,  that  which  it  suggests  depends 
upon  what,  by  prior  varying  experiences,  has  become  associated 
in  his  mind  with  that  which  has  been  written.  That  which  I 
send  through  the  mail  is  one  element,  but  not  at  all  the  deter- 
mining element  in  the  resultant  varying  ideas  suggested  to 
the  different  readers.  How  ridiculous  and  monstrous  it  is  to 
assert  that  a  discrimination  between  mail  matter,  not  according 
to  its  own  inherent  definable  qualities,  but  according  to  its 
mental  associations  in  the  reader's  mind,  is  a  "necessary  and 
proper"  incident  to,  or  "a  direct  mode  of  executing  the  power" 
to  establish  post  offices  and  post  roads!  Yet  according  to 
such  tests  of  obscenity  are  present  laws  executed.  What  has 
the  reader's  sensitiveness  to  the  discovery  of  lewd  suggestions, 
or  the  existence  of  an  associated  lascivious  idea,  or  the  jury's 
capacity  for  psycho-sexual  receptivity,  to  do  with  establishing 
post  roads?  Plainly  and  unmistakably  nothing  at  all.  Here 

133 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

it  is  desirable  to  emphasize  the  fact  that  the  incidental  and  im- 
plied powers  of  congress  are  required  by  the  federal  consti- 
tution to  be  both  "necessary  and  proper."  If  this  power  under 
investigation  is  deemed  only  "proper,"  but  not  "necessary,"  in 
the  sense  of  being  unavoidable,  *hen  it  does  not  exist.  This 
does  not  mean  that  the  particulai  regulation  must  be  indis- 
pensable, but  the  existence  of  a  general  power  to  choose  be- 
tween this  particular  regulation  and  some  other,  must  be  indis- 
pensable to  the  expressed  power,  as  a  "direct  means  of  execu- 
ting it."  This  is  not  a  question  of  regulating  the  physical  charac- 
teristics of  mail  matter,  or  postal  charges,  nor  preventing  the 
commission  of  another  crime  over  which  congress  has  been 
given  authority,  by  another  part  of  the  constitution.  This  is  an 
effort,  by  means  of  the  postal  system,  to  regulate,  in  the 
thoughts  of  the  mail  recipient,  certain  ideas  which  are  not  in 
themselves  criminal.  The  theory  is  that  these  certain  ideas 
tend  to  induce  conduct  which  in  itself  is  not  necessarily  either 
criminal  or  immoral,  but  sometimes  becomes  so,  and  which  con- 
duct, when  it  is  criminal,  is  so  by  virtue  of  state  laws,  and  is 
not  within  the  power  of  congress  to  regulate,  because  that 
potential  sexual  conduct,  if  crime  it  be,  when  it  has  materialized 
into  actuality,  is  never  in  any  of  its  essential  parts  committed 
in  the  mails  or  on  the  post  office's  premises,  where  congress 
has  jurisdiction  over  it.  Unlike  fraud  and  lottery-gambling, 
fornication  and  adultery  cannot  be  committed  by  mail,  and 
when  otherwise  committed  in  a  place  where  congress  has 
authority,  it  can  be  adequately  punished  without  invoking  the 
pretense  of  postal  regulation,  and  when  committed  within  the 
states  is  none  of  the  concern  of  congress. 

Our  contention  is  that  while  congress  may  in  its  discretion 
use  "any  direct  mode  of  executing"  its  expressed  authority, 
it  has  no  power  to  make  the  end  authorized  by  the  constitution 
a  mere  means  to  the  accomplishment  of  an  end  that  is  not  so 
authorized.  Chief  Justice  Marshall  expressed  it  thus :  "Should 
congress,  under  the  pretext  of  executing  its  powers,  pass  laws 
for  the  accomplishment  of  objects  not  entrusted  to  the  govern- 
ment, it  would  become  the  painful  duty  of  this  tribunal  *  *  * 
to  say  that  such  an  act  was  not  the  law  of  the  land."4  Since 
Judge  Marshall  wrote  the  foregoing,  numerous  acts  have  been 
declared  unconstitutional  for  coming  within  the  foregoing 

*M'Culloch  v.  Maryland,  17  U.   S.  423. 

134 


IMPLIED  POWER  TO  EXCLUDE   "OBSCENE"   IDEAS  FROM   MAIL. 

prohibition.6  That  which  Judge  Marshall  in  M'Culloch  v. 
Maryland  said  could  not  be  done  by  congress  is  precisely  what 
has  been  done  in  the  legislation  now  under  consideration.  To 
control  the  psycho-sexual  condition  of  the  addressee  of  mail 
matter  is  not  one  of  the  expressed  powers  of  congress ;  neither 
is  the  regulation  of  the  psycho-sexual  condition  of  the  ad- 
dressee o£  mail  "a  direct  mode  of  executing"  the  power  to 
establish  post  offices  and  post  roads.  In  fact  it  bears  no  pos- 
sible relation  either  to  their  establishment  or  maintenance. 
Therefore  the  act  of  congress  now  under  consideration  is  not 
the  law  of  the  land,  because  the  object  to  be  accomplished  is 
not  one  entrusted  to  congress.  If  regulating  man's  psycho- 
sexual  conditions  and  the  resultant  sexual  conduct,  is  an  im- 
plied power,  incident  to  a  regulation  of  the  mails,  then  it  is 
within  the  discretion  of  congress  to  accomplish  that  same  end 
by  any  other  adequate  means.  Among  such  means  would  be 
the  limitation  of  the  use  of  the  mails  to  the  unsexed,  or  pro- 
viding that  all  who  willingly  receive  "obscene"  mail,  or  any 
mail,  shall  submit  to  castration  or  ovariotomy.  This  would  be 
as  legitimate  a  power,  implied  from  authority  to  regulate  the 
postal  system,  as  the  other  method  of  controlling  the  psycho- 
sexual  condition  of  the  mail  addressee. 

MAY  CONGRESS  USE  POSTAL  POWER  AS  A   MEANS  OF  REGULATING 

TRADE? 

Next  we  inquire  if  the  foregoing  conclusion  can  be  avoided 
by  the  suggestion  that  the  purpose  to  be  achieved  by  this  postal 
regulation  was  not  to  control  the  psycho-sexual  states  of 
postal  patrons,  but  to  withhold  the  aid  of  the  postal  system 
from  a  class  of  business  which  congress  disapproves  and  de- 
sires to  discourage,  but  which,  within  the  states,  it  has  not  the 
expressed  power  to  destroy  by  direct  criminal  legislation  to 
that  end.  This  again  involves  the  same  question  as  the  last, 
namely:  Can  congress,  under  the  pretext  of  regulating  th§ 
mails,  make  that  regulation  avowedly  subservient  to  objects 
with  which  it  is  not  authorized  to  deal  directly?  In  the  exer- 
cise of  an  unavoidable  duty  to  regulate  the  physical  character- 
istics of  mail  matter,  congress  may  transmit  dry  goods  and 

•Hepburn  v.  Griswold,  8  Wall.  603  (Legal  Tender  Act);  Cummings  v.  Mis- 
souri, 71  U.  S.  320  (Disloyal  Clergyman);  Ex  parte  Garland,  71  U.  S.  333  (Dis- 
barring Rebels);  U.  S.  v.  Reese,  92  U.  S.  215  (Negro  Suffrage);  U.  S.  v.  Steffens, 
100  U.  S.  82  (Trade  Mark  Cases);  U.  S.  v.  Stanley,  109  U.  S.  3  (Civil  Rights 
Cases);  Pollock  v.  Farmers'  L.  &  T.  Co.,  157  U.  S.  429  (Income  Tax);  James  v. 
Bowman,  190  U.  S.  127  (Negro  Suffrage) ;  U.  S.  v.  Matthews,  146  Fed.  Rep.  308 
(Com.  Agric.);  U.  S.  v.  Scott,  148  Fed.  Rep.  421  (Labor  Union  &  Interstate 
Com.);  Brooks  v.  So.  Pac.  Ry.,  148  Fed.  Rep.  996  (Emp.  Liab.  &  Interstate  Com.). 

135 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

exclude  printed  matter.  The  incidental  effect  might  be  that 
the  dry  goods  business  would  receive  an  appreciable  impetus 
and  the  publishing  business  a  relative  set-back.  Such  an 
effect  would  not  void  the  congressional  enactment,  so  long 
as  it  is  merely  incidental  to  a  discrimination  based  upon  factors 
bearing  such  relation  to  the  control  of  mail  transportation  as 
to  be  a  direct  mode  of  exercising  the  power  to  create  post 
offices  and  post  roads.  However,  the  result  is  different  when 
the  avowed  purpose  is  to  make  the  establishment  of  the  postal 
system  a  mere  instrumentality  for  promoting  approved  trade, 
and  to  make  the  particular  postal  regulations  therefor  avowedly 
subservient  to  such  other  purpose,  which  congress  cannot 
directly  promote.  If  such  other  purpose  of  regulating  trade, 
not  authorized  by  any  other  expressed  power,  was  by  congress 
made  the  avowed  object  of  postal  regulations,  the  act  would 
be  a  nullity,  under  the  rule  above  quoted  from  M'Culloch  v. 
Maryland.  It  follows  that  the  law  in  question  cannot  be  sus- 
tained by  the  process  of  judicially  imputing  to  congress  such 
an  unconstitutional  motive  of  trade  regulation.  That  trade 
regulation  was  not  the  purpose  is  still  further  apparent  from 
the  fact  that  the  act  of  congress  does  not  make  criminality 
depend  upon  a  commercial  transaction  in  "obscenity."  Such 
matter  sent  as  a  gift,  or  in  a  private,  sealed  and  personal  letter, 
is  as  criminal  under  the  act  as  if  it  were  part  of  a  commercial 
transaction. 

To  sustain  this  law,  on  the  contention  that  congress  may  use 
the  postal  system  as  a  means  of  regulating  trade,  would  vest 
in  congress  the  most  dangerous  power  ever  possessed  by  any 
tyrant.  Congress  might  then  say :  "We  wish  to  encourage  the 
business  of  Jones.  Jones  may,  and  Smith  may  not,  use  the 
mails."  Under  the  guise  of  regulating  the  mails  congress  might 
encourage  the  publication  of  literature  favorable  to  a  protective 
tariff  and  prohibit  the  transmission  of  that  favoring  tariff 
reform ;  it  might  transmit  the  books  favoring  Protestantism  and 
exclude  those  favoring  Catholicism;  might  deliver  gratuitous- 
ly literature  commending  its  administration  of  the  postal  sys- 
tem and  the  political  party  in  power,  and  penalize  the  posting 
of  mail  criticising  the  postal  management  and  the  political 
party  in  power.  To  establish  such  a  power,  is  to  make  the  post 
office  a  prize  to  be  contended  for  by  political  machines  and 
large  industrial  enterprises,  for  the  destruction  or  curtailment 
of  criticism  and  competition.  The  obvious  answer  to  all  such 

136 


IMPLIED  POWER  TO  EXCLUDE  "OBSCENE"   IDEAS  FROM   MAIL. 

claims  of  power  is  that  the  sentiments  expressed  through  the 
mails,  or  the  speculations  about  the  psychologic  (moral) 
tendency  of  them,  bears  no  possible  relation  to  any  possible 
factor  in  the  establishment  or  maintenance  of  post  offices  and 
post  roads,  and  therefore  cannot  be  "a  direct  mode  of  exe- 
cuting" the  power  to  create  them,  and  is  not  an  implied  power 
of  congress,  and  the  law  under  consideration  is  therefore 
unconstitutional. 

Furthermore,  if  it  were  contended  that  in  excluding  from 
the  mails  all  "obscene"  publications,  congress  had  in  view  any 
other  object  than  the  single  one  of  regulating  the  psycho-sex- 
ual states  of  postal  patrons,  the  contention  would  be  palpably 
false,  as  is  readily  seen  by  all  the  judicial  decisions  and  the 
tests  of  "obscenity"  prescribed  by  the  courts  as  guides  to 
jurors  in  the  trial  of  these  cases.  It  follows  that  here,  by 
universal  confession,  we  have  just  such  a  case  as  Chief  Justice 
Marshall  described,  wherein  "congress  under  the  pretext  of 
executing  its  power  [did]  pass  laws  for  the  accomplishment 
of  objects  not  entrusted  to  the  government,"  namely:  the 
regulation  of  the  intellectual  food  and  mental  states  of  its 
adult  citizens. 

HOW  FAR  CAN  CONGRESS  DIFFERENTIATE  BETWEEN  MAIL- 
RECIPIENTS  ? 

One  more  question  remains  to  be  considered.  May  not 
congress,  in  the  exercise  of  its  implied  power  to  regulate  post 
offices,  classify  the  recipients  of  mail  matter,  so  as  to  exclude 
some  from  postal  privileges  which  are  granted  to  others? 
The  answer  of  course  is  that  it  may  do  so,  sometimes,  but  this, 
like  all  implied  powers,  is  limited  by  the  necessities  which  call 
the  implication  into  existence.  For  example:  Congress  can 
have  no  power  to  exclude  from  postal  privileges,  on  the  same 
terms  that  it  is  granted  to  others,  an  adult  citizen  with  red  hair, 
simply  because  of  his  red  hair,  who  in  every  respect  bears  the 
same  relationship  to  the  postal  system  and  the  government  that 
do  the  citizens  having  different  colored  hair  and  who  are  per- 
mitted to  use  the  postal  facilities.  The  obvious  reason  is  that 
a  differential  test,  based  solely  on  the  postal  patron's  color  of 
hair,  bears  no  possible  or  conceivable  relation  to  the  establish- 
ment or  maintenance  of  post  offices  and  post  roads.  Neither 
does  his  psycho-sexual  condition,  either  before  or  after  using 
the  mail,  bear  any  such  relation.  But  a  classification  of  mail 
patrons  according  to  their  differing  relations  to  the  postal 

137 


OBSCENE   LITERATURE   AND    CONSTITUTIONAL    LAW. 

service,  or  to  the  government,  would  be  a  different  matter. 
Thus,  deprivation  of  mail  service,  might  be  imposed  as  a 
penalty  upon  conviction  for  any  crime  in  the  power  of  congress 
to  create ;  or  might  be  imposed  to  prevent  the  use  of  the  mails 
as  a  material  factor  in  the  actual  commission  of  crime  over 
which  congress  has  jurisdiction,  and  which  crime  is  predicated 
upon  an  actual  injury  to  some  actual  person.  (Fraud  and 
Gambling.)  It  is  also  quite  certain  that  owing  to  the  different 
relation  of  the  government  to  lunatics  and  minors,  congress 
would  have  the  power  to  classify  them  separately  from  other 
citizens  and  make  special  regulations  for  them  as  a  class.  But 
all  differentiation  in  the  enjoyment  of  postal  privileges,  made 
between  different  classes  of  citizens  must  be  based  upon  tests 
founded  in  their  essentially  different  relations  to  the  govern- 
ment itself,  and  not  according  to  any  arbitrary  distinction  based 
upon  the  color  of  their  hair,  or  their  psycho-sexual  possibilities. 

THE  DANGER  OF  SUCH    POWER. 

We  must  not  estimate  lightly  the  dangers  which  are  sure 
to  be  realized  should  a  decision  of  the  Supreme  Court  of  the 
United  States  once  affirm  the  unlimited  power  of  congress  to 
provide  a  censorship  over  the  opinions,  or  over  the  psychologic 
tendency  of  opinions  which  are  transmitted  through  the  mails. 
It  is  fresh  in  our  memory  that  when  the  agitation  against  the 
beef  packers  began,  which  agitation  resulted  in  recent  pure 
food  laws,  some  packers  demanded  that  the  postmasters  ex- 
clude from  the  mails  all  "muckrake"  magazines  which  were 
criticising  their  business.  Already  a  demand  has  been  made  to 
exclude  from  the  mails  everything  tending  to  encourage  the 
use  of  alcoholic  liquors  and  tobacco,  and  in  due  time,  no  doubt, 
in  the  name  of  morality  we  will  exclude  everything  which  tends 
to  encourage  meat  eating.  This  will  come  not  alone  from  the 
scientific  and  sentimental  vegetarians,  but  will  have  the  endorse- 
ment of  our  sexual  tinkers.  In  England  the  cry  has  already 
gone  up  from  high  church  dignitaries  that  meat  eating  pro- 
motes lasciviousness.  This  warns  us  of  the  evil  to  come  from 
unnecessarily  enlarging  by  implication  the  congressional  power 
to  regulate  the  mental  food  of  postal  patrons. 

If,  prior  to  1837,  there  had  existed  an  authoritative  judicial 
decision  affirming  the  power  over  the  mails,  it  would  have 
been  made  a  crime  to  send  abolition  literature  through  the  post 
office.  This  again  warns  us  that  such  a  power  is  an  insufferable 

138 


IMPLIED  POWER  TO  EXCLUDE   "OBSCENE"   IDEAS  FROM   MAIL. 

menace  to  human  progress.  Its  exercise  at  that  time  failed 
only  because  the  great  lawyers  in  the  senate  were  united  in  the 
belief  that  no  such  power  existed.  About  1836,  it  was  pro- 
posed by  the  postmaster-general  and  President  Jackson  to  pass 
a  bill  penalizing  the  use  of  the  mails  for  the  transmission  of 
abolition  literature.  I  believe  it  was  during  that  debate  that 
Senator  John  P.  King,  a  member  from  a  slave-holding  state, 
said  this:  "I  prefer  the  enjoyment  of  rational  liberty  at  the 
price  of  vigilance,  and  at  the  risk  of  occasional  trouble  by  the 
error  of  misguided  or  bad  citizens,  to  that  repose  which  is 
enjoyed  in  the  sleep  of  despotism.  *  *  *  No  man  was  ever 
convinced  of  his  error  by  refusing  to  hear  him."  Mr.  Calhoun 
was  made  chairman  of  a  special  committee  in  the  senate,  and 
the  subject  received  careful  consideration.  He  evidently  wished 
for  the  power  to  supervise  the  mails  in  the  interest  of  slavery  ; 
but  to  his  great  honor,  be  it  said,  he  plainly  saw  and  declared 
that  the  constitution  did  not  give  congress  the  power,  and  he 
would  not  claim  it.  The  most  he  could  ask  was  that  by  the 
"comity  of  nations"  the  United  States  would  restrain  postmas- 
ters from  delivering  such  matter  in  the  states  which  had  made 
its  circulation  illegal.  The  question  was  discussed  fully  in  a 
senate  of  unequaled  ability,  and  even  this  limited  restraint, 
proposed  by  Mr.  Calhoun,  by  a  vote  of  twenty-five  to  nine- 
teen was  held  to  be  impossible  under  the  constitution.6  In  the 
debate  Henry  Clay  said :  "When  I  saw  that  the  exercise  of  a 
most  extraordinary  and  dangerous  power  had  been  announced 
by  the  head  of  the  postoffice,  and  that  it  had  been  sustained 
by  the  President's  message,  I  turned  my  attention  to  the  sub- 
ject and  inquired  whether  it  was  necessary  that  the  general 
government  should  under  any  circumstances  exercise  such  a 
power,  and  whether  they  possessed  it.  After  much  reflection, 
I  have  come  to  the  conclusion  that  they  could  not  pass  any  law 
interfering  with  the  subject  in  any  shape  or  form  whatever. 
The  evil  complained  of  was  the  circulation  of  papers  having 
a  certain  tendency.  The  papers,  unless  circulated,  and  while 
in  the  postoffice,  could  do  no  harm.  It  is  the  circulation 
solely — the  taking  out  of  the  mail  and  the  use  to  be  made  of 
them — that  constitutes  the  evil.  Then  it  is  perfectly  compe- 
tent for  the  state  authorities  to  apply  the  remedy.  The  instant 
that  a  prohibited  paper  is  handed  out,  whether  to  a  citizen  or 
sojourner,  he  is  subject  to  the  laws  which  compel  him  either 
to  surrender  or  burn  it."  Mr.  Clay  then  proceeded  to  demolish 

•Con.  Globe,  1836,  pp.  36,  150,  288,  237,  etc. 

139 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

the  claim  that  congress  could  legislate  to  carry  into  effect  the 
laws  of  twenty-four  different  states  or  sovereignties,  and  said 
ironically:  "I  thought  that  the  only  authority  of  congress  to 
pass  laws  was  in  pursuance  of  the  constitution."  To  the  ques- 
tion of  Senator  Buchanan,  of  Pennsylvania,  to  the  effect  that 
the  postoffice  power  did  give  congress  the  right  to  regulate 
what  shall  be  carried  in  the  mails,  he  replied  in  the  negative, 
saying:  "If  such  a  doctrine  prevailed,  the  government  may 
designate  the  persons,  or  parties,  or  classes  who  shall  have  the 
benefit  of  the  mails,  excluding  all  others."  During  the  debate, 
one  of  the  safest  of  senators,  "Honest  John"  Davis,  said :  "It 
would  be  claiming  on  the  part  of  government  a  monopoly,  an 
exclusive  right  either  to  send  such  papers  as  it  pleased,  or  to 
deny  the  privilege  of  sending  them  through  the  mail.  Once 
establish  the  precedent,  and  where  will  it  lead  to  ?  The  govern- 
ment may  take  it  into  its  head  to  prohibit  the  transmission 
of  political,  religious,  or  even  moral  or  philosophical  publica- 
tions in  which  it  might  fancy  there  was  something  offensive, 
and  under  this  reserved  right,  contended  for  in  this  report,  it 
would  be  the  duty  of  the  government  to  carry  it  into  effect." 
Mr.  Davis  also  said  he  "denied  the  right  of  the  government  to 
exercise  a  power  indirectly  which  it  could  not  exercise  directly ; 
and  if  there  was  no  direct  power  in  the  constitution,  he  would 
like  to  know  how  they  would  get  the  power  of  the  states — 
legislative  power  at  most."  Mr.  Webster  expressed  himself 
as  "shocked"  at  the  unconstitutional  character  of  the  whole 
proceeding.  He  said:  "Any  law  distinguishing  what  shall  or 
shall  not  go  into  the  mails,  founded  on  the  sentiments  of  the 
paper,  and  making  the  deputy  postmaster  a  judge,  I  should 
say  is  expressly  unconstitutional."7 

CONCLUSIONS. 

Congress  admittedly  has  no  authority  to  regulate  the  sex- 
ual conduct  of  citizens  within  the  states.  Much  less  has  it  the 
power,  as  a  means  to  that  end,  to  control  the  mere  psycho- 
sexual  conditions  of  citizens  of  the  states.  It  has  never  been 
claimed  nor  even  imagined  or  dreamed,  that  the  postal  regula- 
tion against  "obscene"  literature  is  of  the  remotest  consequence 
AS  A  MEANS  to  the  maintenance  of  post  roads,  or  that  such 
regulation  is  of  even  the  remotest  conceivable  use  to  the  postal 
system  as  such.  On  the  contrary,  both  judicially  and  other- 

TPurity  and  Liberty,  by  Wakeraan;  Congressional  Globe,  1836,  pp.  36,  150,  288, 
*83,  etc.;  Von  Hoist's  Life  of  Calhoun,  p.  133. 

140 


IMPLIED  POWER  TO    EXCLUDE  "  OBSCENE        IDEAS    FROM  MAIL. 

wise,  it  nas  been  stated,  again  and  again,  that  the  only  purpose 
of  that  regulation  was  to  control  the  psycho-sexual  states  of 
postal  patrons,  as  a  means  of  restraining  their  sexual  activities. 
But  this  is  an  end  the  accomplishment  of  which  is  not  entrusted 
to  the  congress  of  the  United  States.  Confessedly  then,  we 
have  here  a  case  where  congress,  under  the  pretext  of  exe- 
cuting its  powers  to  establish  post  offices  and  post  roads,  has 
passed  a  law  for  the  accomplishment  of  objects  not  entrusted 
to  the  United  States  government,  and  this  is  exactly  what 
Chief  Justice  Marshall  said  could  not  become  the  law  of  the 
land.8  It  can  make  no  possible  difference  to  the  postal  system 
as  such  whatever  may  be  the  psychologic  effect  of  the  opinions 
transmitted.  Some  physical  factor  of  the  postal  system  must 
be  affected,  making  the  postal  system  different  from  what  it 
otherwise  would  be,  or  else  the  regulation  is  not  an  exercise 
of  the  power  to  establish  and  maintain  it. 

Neither  can  the  exercise  of  the  present  power  be  justified  as 
an  incident  to  the  power  to  regulate  interstate  commerce,  be- 
cause the  censorship  is  not  limited  thereto.  It  includes  Intra- 
state  transmission  as  well  as  that  of  private  letters,  or  gifts 
which  are  not  at  all  matters  of  commerce  either  Inter-state  or 
otherwise.9 

For  these  reasons  the  power  here  under  discussion  is  not 
vested  in  Congress  at  all,  and  the  present  laws  creating  a  postal 
censorship  over  mail  matter  are  unconstitutional. 

•M'Culloch  v.   Maryland,  17  U.   S.  483. 

•Howard  vs.  111.  Cent.  R.  R.,  28  Supt.  Ct.  Rep.  141. 


141 


CHAPTER  VIII. 

CONCERNING   THE   MEANING   OF   "FREEDOM    OF 
THE  PRESS."* 

The  postal  laws  against  "obscene"  literature  are  void  under 
the  constitutional  prohibition  against  the  abridgment  of  free- 
dom of  speech  and  of  the  press.  Likewise  all  similar  State 
legislation  is  void  under  State  Constitutions. 

Syllabus  of  the  argument :  This  constitutional  guarantee  of 
freedom  of  the  press  is  violated  whenever  there  is  an  artificial 
legislative  destruction  or  abridgment  of  the  greatest  liberty 
consistent  with  an  equality  of  liberty,  in  the  use  of  the  printed 
page  as  a  means  of  disseminating  ideas  of  conflicting  tendency. 
The  use  of  printing  is  but  an  extended  form  of  speech.  Free- 
dom of  speech  and  press  is  abridged  whenever  natural  opportu- 
nity is  in  any  respect  denied  or  its  exercise  punished,  merely 
as  such;  that  is,  in  the  absence  of  actual  injury,  or  when  by 
legislative  enactment  there  is  created  an  artificial  inequality 
of  opportunity,  by  a  discrimination  according  to  the  subject 
matter  discussed,  or  a  discrimination  as  between  different  ten- 
dencies in  the  different  treatment  of  the  same  subject  matter,  or 
according  to  differences  of  literary  style  in  expressing  the  same 
thought.  All  this  is  now  accomplished  under  obscenity  laws  as 
at  present  administered,  and  therefore  our  laws  upon  the  sub- 
ject are  unconstitutional. 

This  contention  involves  the  establishment  of  a  new  defi- 
nition of  "freedom  of  the  press"  based  upon  the  viewpoint  that 
the  framers  of  the  constitution  intended  by  that  clause  to  en- 
large the  intellectual  liberty  of  the  citizen  beyond  what  it  had 
theretofore  been  under  the  English  system.  Some  State  courts 
have  erroneously  assumed  that  the  only  purpose  was  to  ex- 
change a  censorship  before  publication  for  criminal  punish- 
ment after  publication,  without  the  least  enlargement  of  the 
right  to  publish  with  impunity  so  long  as  no  one  is  injured. 
The  contention  will  be  that  the  constitution  changed  liberty  of 
the  press  by  permission,  to  Liberty  as  a  right  because  thus  only 

*  Republished  from  The  Central  Law  Journal. 

142 


CONCERNING  THE    MEANING  OF      FREEDOM   OF   THE   PRESS. 

can  all  citizens  be  protected  in  their  proper  opportunity  to  hear 
and  read  all  that  others  have  to  offer,  and  without  which  free- 
dom unrestricted  there  is  no  intellectual  liberty  at  all  as  a 
matter  of  right. 

Before  proceeding  with  the  more  critical  study  of  the 
meaning  of  "freedom  of  the  press,"  it  is  well  that  we  should 
point  out,  and  so  far  as  possible  bar,  the  principal  avenues 
of  error,  which  have  heretofore  misled  our  courts. 

THE    DANGER    OF    PRECEDENTS. 

Over  a  century  ago  Sargeant  Hill  cynically  wrote  this: 
"When  judges  are  about  to  do  an  unjust  act  they  seek  for  a 
precedent  in  order  to  justify  their  conduct  by  the  faults  of 
others."  In  matters  of  government,  at  least  during  the  last 
few  centuries,  the  evolution  has  been  from  despotism  to  liberty. 
It  follows  from  this  that  the  danger  and  iniquity  of  blindly 
following  precedents  is  nowhere  so  great  as  in  the  attempts 
to  define  the  limits  of  constitutional  liberty  by  reverting  to 
the  ancient  misconceptions  of  it,  because  the  older  precedents 
were  all  made  by  tyrants,  or  those  not  far  evolved  from  their 
attitude  of  mind.  As  we  evolve  to  a  more  refined  sense  of 
justice,  and  rational  conception  of  liberty,  the  old  precedents 
must  be  constantly  overruled.  It  is  this  which  marks  the 
progress  of  our  race  in  its  evolution  to  a  truer  and  final  social 
liberty. 

CRITICAL  STUDY  OF  FUNDAMENTALS. 

The  utility  of  a  brief  historical  review  of  the  struggle 
for  "freedom  of  the  press"  lies  partly  in  this,  that  it  shows  how 
reluctant  have  been  those  in  power  to  admit  such  freedom 
in  practice,  though  seldom  denying  it  in  principle,  and  how 
shifty  the  powers  of  despotism  have  been  in  yielding  up  one 
form  of  repression  as  a  concession  to  intellectual  liberty,  and 
at  the  same  time  creating  a  new  method  for  effectually  ac- 
complishing the  same  impairment  of  intellectual  opportunity. 
Such  a  study  will  also  show  how  uniformly  the  moral  senti- 
mentalism  of  those  in  authority  has  prompted  them  to  reinvent 
the  same  phrases  in  defence  of  each  renewed  attack  upon 
freedom. 

In  order  to  understand  the  underlying  impetus  of  all 
this,  it  must  be  remembered  that  when  this  problem  first  arose 
it  was  in  every  essence  a  religious  one,  and  arose  where  there 
was  a  union  of  church  and  State.  Those  who  governed 

143 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

claimed  to  do  so  by  divine  right,  and  in  their  official  acts  repre- 
sented the  Deity.  The  King  could  do  no  wrong,  and  to  criti- 
cize him  or  his  acts  was  an  insult  to  the  Almighty  for  whom 
he  acted,  just  as  much  as  though  legalized  religion  had  been 
blasphemed.  From  the  viewpoint  of  such  a  church-state  it 
was  inevitable  that  those  in  authority  should  affirm  that :  "To 
say  that  religion  is  a  cheat  is  to  dissolve  all  those  obligations 
whereby  civil  societies  are  preserved;  and  Christianity  being 
parcel  of  the  laws  of  England,  therefore  to  reproach  the 
Christian  is  to  speak  in  subversion  of  the  law."1  "It  was  the 
doctrine  of  Coke  [1551-1632]  and  even  so  late  as  Holt,  C.  J. 
[1689-1710]  and  Treby  [1692-1701]  that  any  law,  that  is,  any 
statute,  made  against  any  point  of  the  Christian  religion,  or 
what  they  thought  was  the  Christian  religion,  was  void."2 

Of  course  under  the  influence  of  such  authority  it  neces- 
sarily followed  that  no  one  had  any  right  to  think  or  speak, 
upon  matters  of  religion,  rulers,  or  governments,  who  had  not 
been  thereunto  authorized  by  those  who  were  recognized  as 
possessing  some  divine  authority  to  give  or  withhold  such  per- 
mission. But  religion  and  government,  according  to  the 
views  then  prevailing,  encompassed  everything  and  so  it  fol- 
lowed inevitably  that  "Free  speech  was  a  species  of  gift  by 
the  Sovereign  to  the  people." 

Although  we  have  all  abandoned  the  original  premises 
from  which  was  drawn  the  conclusion  that  freedom  of  speech 
was  a  gift  by  the  sovereign,  yet  most  American  judges  seem 
to  read  the  precedent  so  blindly  that  they  adhere  to  the  dogma 
that  "freedom  of  the  press"  means  a  liberty  by  permission  and 
not  a  natural  right  guaranteed  by  the  constitution.  This  is 
self-evident  from  almost  every  judicial  utterance  upon  the 
subject  and  in  spite  of  the  self-evident  fact  that  our  consti- 
tution-makers intended  to  perpetuate  a  different  rule.  This 
error,  like  many  of  the  others,  comes  from  the  uncritical 
adoption  of  precedents  and  the  consequent  failure  to  realize 
that  our  very  different  theory  of  government  has  overturned 
the  foundation  which  alone  justified  the  older  authorities,  and 
failing  to  realize  this  change  of  base,  our  courts  also  fail  to 
see  the  necessity  for  repudiating  the  precedents  which  had 
no  other  foundation. 

THE  TYRANTS  'rLOVE"   OF  LIBERTY. 

Another  matter  to  be  guarded  against  is  the  false  pretense 

*Reg.  v.  Taylor,  Ventris  293.  The  later  view  in  England  seems  different* 
See  41  Fortnightly  Review,  305. 

2Patterson's  Liberty  of  the  Press,  p.  67,  citing  10  st.  Tr.  75. 

144 


CONCERNING  THE    MEANING  OF   "FREEDOM   OF   THE   PRESS." 

of  a  love  of  liberty  which  tyrants  have  always  expressed,  even 
in  the  very  act  of  enforcing  its  destruction.  Thus  Lord  Es- 
kine  tells  us:  "The  public  welfare  was  the  burden  of  the 
preambles  to  the  licensing  acts;  the  most  tyrannical  laws  in 
the  most  absolute  governments  speak  a  kind  parental  language 
to  the  abject  wretches,  who  groan  under  the  crushing  and 
humiliating  weights."3  In  France,  October,  1803,  an  act  was 
passed  by  which  all  booksellers  were  prohibited  from  vending 
any  book  without  having  submitted  it  to  the  censors,  "and  as 
if  to  add  insult  to  injury  the  measure  was  introduced  as  one 
'to  secure  the  liberty  of  the  press/  "  *  *  *  Napoleon  the 
First  did  not  consider  liberty  of  the  press  as  possible  among 
Frenchmen,  "who  have  a  lively  imagination,"  as  it  is  in  Eng- 
land where  "the  people  being  brutal  are  less  likely  to  be  in- 
fluenced by  writings,  and  are  more  easily  kept  in  check  by  the 
throne  and  the  aristocracy."* 

In  America  we  find  a  similar  practice.  Solemn  judicial 
opinions  sometimes  reek  with  pharisaical  eulogies  of  the 
judicial  love  of  liberty,  as  a  prelude  to  the  arbitrary  punishment 
of  a  man  for  contempt,  without  trial  by  jury  or  an  opportunity 
to  prove  truth  and  justifiable  motive  before  an  impartial  tri- 
bunal, and  all  because  he  had  exercised  his  supposed  right  to 
express  freely  his  opinion  of  a  public  servant,  the  court.  Here 
is  a  sample: 

"It  is  a  well  known  fact,  that  the  bench  and  the  bar 
have  been,  in  this  and  all  other  countries  where  the  law 
has  existed,  as  a  distinct  profession,  the  ablest  and  most 
zealous  advocates  of  the  liberal  institutions,  the  freedom  of 
conscience,  and  the  liberty  of  the  press ;  and  none  have  guarded 
more  watchfully  the  encroachments  of  power  on  the  one 
hand,  or  deprecated  more  earnestly  tendencies  to  lawless 
anarchy  and  licentiousness  on  the  other.  The  freedom  of  the 
press,  therefore,  has  nothing  to  fear  from  the  bench  in  this 
State.  No  attempt  has  ever  been  made,  and  we  may  venture 
to  say  never  will  be,  to  interfere  with  its  legitimate  province, 
on  the  part  of  the  judiciary,  by  the  exercise  of  the  power 
to  punish  contempts. 

"The  object  of  the  clause  in  the  Bill  of  Rights  above 
quoted  is  known  to  every  well  informed  man.  Although  the 
press  is  now  almost  as  free  in  England  as  it  is  in  this  country, 
yet  the  time  was  in  bygone  ages  when  the  ministers  of  the 

3Vol.  1,  p.  48,  Edition  of  1810. 

4Vol.  15,  Solicitors  Journal  &  Reporter,  51  &  70. 

145 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 


CONCERNING  THE    MEANING  OF      FREEDOM   OF   THE   PRESS. 

a  like  freedom  for  anarchists  to  discredit  the  government  in 
the  hope  of  ultimately  securing  its  peaceable  abolition.  There 
is  no  doubt,  either  but  that  practically  all  these  same  news- 
papers can  be  relied  upon  to  advocate  the  suppression  of  all 
searching  and  enlightening  sex-discussion.  So  also  I  know 
an  anarchist  who,  probably  from  fear  of  being  wrongly  sus- 
pected of  believing  in  the  forcible  abolition  of  government, 
hastens  to  explain  that  though  he  esteems  all  government  a 
nuisance  he  still  thinks  it  proper  for  government  to  suppress 
even  the  fruitless  advocacy  of  crime.  Again,  I  know  some 
radical  and  ardent  sex-reformers  who  think  it  an  outrage 
that  plain  spoken  and  searching  sex-discussion  is  punishable, 
but  see  no  objection  to  the  suppression  of  an  equally  plain 
spoken  and  searching  discussion  by  some  of  the  more  radical 
socialists  and  anarchists.  So  likewise  we  can  find  Protes- 
tants who  desire  unlimited  liberty  for  themselves  to  criticise 
the  religious  tenets  of  their  Catholic  neighbors,  and  Catholics 
who  desire  to  use  a  similar  liberty  against  the  theology  of 
their  Protestant  neighbor,  but  both  hasten  to  unite  for  the 
punishment  of  the  atheist  who  would  deride  the  tenets  of 
both.  Yet  each  and  all  of  these  will  seriously  tell  you  how 
ardently  they  love  "freedom  of  speech/'  but  they  will  always 
so  define  that  freedom  as  to  leave  in  full  force  the  power 
to  suppress  those  opinions  of  which  they  disapprove. 

Let  me  illustrate  still  further.  One  reading  a  discus- 
sion of  the  licensing  acts  might  easily  conclude  that  freedom 
of  the  press  meant  only  the  absence  of  a  licensor,  all  other 
forms  of  abridging  free  utterance  being  compatible  with 
freedom.  Another  reading  a  definition  of  freedom  of  the 
press  as  these  are  sometimes  formulated  in  relation  to  per- 
sonal libel,  would  find  himself  in  a  rather  hopeless  situation 
if  he  should  seek  to  apply  that  definition  to  a  case  where  the 
abstract  discussion  of  sex-ethics  was  involved,  and  the  claim 
was  made  that  it  was  obscene  because  it  tended  to  deprave 
the  morals.  Likewise  there  might  be  difficulty  in  using  a 
definition  of  freedom  framed  in  relation  to  treason  and  seek 
to  apply  it  to  the  case  of  a  non-resistant  anarchist.  Errors 
of  this  sort  have  been  frequently  made  in  the  misdirected  effort 
to  follow  precedent,  and  have  usually  resulted  in  the  definition 
of  unabridgable  freedom  of  speech  so  as  to  permit  abridg- 
ment. 

Evidently  the  difficulty  with  most  of  these  advocates  of 

147 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

freedom  is  that  they  have  no  conception  of  freedom  in  gen- 
eral, and  erroneously  conclude  that  everybody  is  enjoying  the 
greatest  possible  freedom  when  they  feel  themselves  unre- 
stricted, though  this  seeming  liberty  for  themselves  may  be 
wholly  due  to  the  fact  that  they  are  utterly  devoid  of  anything 
like  a  serious,  carefully  reasoned  opinion  upon  any  subject 
whatever.  If  they  had  ever  done  any  of  the  intellectual  work 
which  that  presupposes,  they  would  probably  know  something 
of  the  ease  with  which  differences  of  opinion  may  arise  upon 
every  possible  question  and  of  the  importance  of  maintaining 
the  other  fellow's  right  to  disagree. 

WHAT  is  "INTERPRETATION"? 

We  are  now  to  undertake  a  general  discussion  as  to  the 
interpretation  of  the  constitutional  phrase  "Congress  shall  make 
no  law  abridging  freedom  of  speech  or  of  the  press,"  and  we 
must  first  endeavor  to  get  a  clear  idea  of  what  we  mean  by 
"interpretation."  Manifestly  "interpretation"  does  not  mean 
that  we  may  inject  words,  phrases,  or  exceptions,  into  the  con- 
stitutional phraseology.  On  the  contrary, by  "interpretation"  we 
can  only  mean  that  we  are  to  arrive  at  the  meaning  of  the 
constitution  by  deductions  made  exclusively  from  the  words  ac- 
tually used  therein,  unless  these  are  ambiguous.  If  there  is  any 
ambiguity,  in  the  significance  of  the  words  which  guarantee  our 
freedom  of  utterance  and  the  right  to  hear,  then  these  words 
may  be  interpreted  in  the  light  of  the  historical  controversy 
which  supposedly  was  settled  by  the  constitutional  clause  in 
question.  On  the  other  hand,  if  the  words  themselves  do  not  of 
necessity  involve  any  ambiguity,  then  the  historical  conditions 
at  the  time  of  their  adoption  can  be  of  no  consequence  to  us  in 
the  matter  of  determining  their  meaning,  because  if  the  meaning 
is  plain  the  historical  facts  become  immaterial  and  useless.  If 
it  can  be  done  the  significance  of  the  constitutional  phraseology 
must  be  determined  wholly  and  exclusively  by  deductions  made 
from  the  words  themselves. 

The  words  "speech"  and  "press"  certainly  are  not  ambig- 
uous. They  cover  every  idea  expressed  vocally  or  presented  on 
a  printed  page.  Although  it  is  manifestly  absurd,  yet  some 
courts  in  effect  have  said  that  speech  is  not  speech,  whether  ex- 
pressed orally  or  on  the  printed  page,  unless  it  can  be  fairly 
classed  as  serious  and  ladylike  discussion.  Others  advise  us 
that  speech  is  not  speech  unless  it  was  uttered  "not  intending  to 

148 


CONCERNING  THE    MEANING  OF      FREEDOM   OF   THE   PRESS. 

mislead  but  seeking  to  enlighten,"  and  even  then  it  is  not  speech 
at  all  if  the  other  fellow  happens  to  consider  it  to  be  "blas- 
phemous, immoral  or  seditious" ;  some  add  "obscene,  indecent, 
filthy,  or  disgusting."  So  in  a  variety  of  ways  courts,  under  the 
false  pretense  of  "construing"  them,  have  amended  our  consti- 
tutional guarantees,  of  freedom  of  speech  and  of  the  press,  so  as 
to  inject  into  them  exception  which  the  judges  think  ought  to 
be  there  but  which  the  framers  of  our  constitutions  neglected  to 
insert. 

When  we  say  that  speech  isn't  speech  except  when  used  in 
serious  and  lady-like  discussion,  such  as  does  not  irritate  us, 
then  we  are  indulging  in  sentimental  nonsense,  and  I  shall  not 
be  in  the  least  inclined  to  change  the  epithet  because  in  effect 
this  has  been  often  done  by  "learned"  judges,  and  "distin- 
guished" courts.  I  should  be  equally  certain  that  the  word 
"freedom,"  when  used  in  connection  with  "speech  and  press," 
was  entirely  free  of  ambiguity,  were  it  not  for  the  extraordinary 
meanings  assigned  to  it  by  the  courts,  under  the  pretense  of 
construing  "freedom."  It  appears  to  me  that  here  the  judges 
instead  of  interpreting  the  word  "freedom"  have  interpolated 
into  the  constitution  significations  which  are  not  at  all  implied 
in  any  of  the  words  therein  used.  It  seems  to  me  that  had  our 
courts  used  common  sense,  instead  of  blindly  following  prece- 
dents established  by  those  who  never  believed  in  free  speech, 
and  instead  of  adopting  definitions  of  freedom  framed  by 
tyrants  whose  conception  of  it  was  repudiated  by  the  American 
revolution,  no  embarrassing  questions  would  ever  have  been 
raised. 

If  the  constitution  had  said  that  "Congress  shall  make  no 
law  abridging  man's  freedom  to  breathe,"  no  one  would  have 
any  doubt  as  to  what  was  meant  and  every  one  would  instantly 
say  that  of  course  it  precluded  Congress  from  passing  any  law 
which  should  prohibit  breathing  contrary  to  the  mandate  of  a 
licensor,  before  trial  and  conviction,  and  that  it  would  equally 
preclude  the  passage  or  enforcement  of  any  law  which  would 
punish  breathing  merely  as  such  upon  conviction  after  the  fact. 
No  sane  man  could  be  found  who  would  say  that  such  a 
guarantee,  to  breathe  without  any  statutory  abridgment,  only 
precluded  the  appointment  of  Commissioners  who  should 
determine  arbitrarily  what  persons  might  be  licensed  to  breathe 
and  who  should  not  be  so  licensed,  and  that  it  would  still  permit 
Congress  to  penalize  all  those  who  do  not  breathe  in  the  speci- 

149 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

ally  prescribed  manner,  even  though  such  criminal  breathing 
had  not  injured  anyone,  nor  could  possibly  do  so  according  to 
any  of  the  known  laws  of  our  physical  universe,  by  which  I 
include  the  actual  knowledge  of  our  bacteriologists  as  to  the 
transmission  of  infectious  diseases. 

There  is  not  the  slightest  reason  to  be  given  why  "freedom" 
in  relation  to  speech  and  press  should  be  differently  interpreted. 
The  only  explanation  for  having  interpreted  it  differently  is  that 
the  people  generally,  and  judges  and  others  in  authority  in 
particular,  believe  in  freedom  to  breathe  but,  emotionally  at 
least,  disbelieve  in  freedom  of  speech  and  of  the  press,  and 
therefore  they  read  into  the  constitution  meanings  and  excep- 
tions which  are  not  represented  there  by  a  single  syllable  or 
word,  and  which  are  therefore  interpolated  to  accomplish  a 
Judicial  amendment  of  the  constitution,  under  the  false  pretense 
of  "construing"  it,  only  because  the  judges  think,  or  rather 
feel,  that  the  constitution  ought  not  to  guarantee  freedom  of 
speech  and  of  the  press  in  those  matters  which  stimulate  their 
emotional  aversion,  and  so  they  dogmatically  assert  that  "free- 
dom" of  utterance  is  not  guaranteed,  in  the  same  sense  in  which 
we  have  spoken  of  freedom  to  breathe. 

The  ordinary  and  plain  meaning  of  the  word  "freedom" 
should  readily  have  solved  all  problems,  if  there  ever  really 
were  any  such,  which  were  discoverable  by  reason  uninfluenced 
by  hysterical  emotions.  In  common  parlance,  we  all  understand 
that  a  man  is  legally  free  to  do  an  act  whenever  he  may  perform 
that  act  with  impunity  so  far  as  the  law  is  concerned.  Thus  no 
one  would  claim  that  another  was  legally  free  to  commit  lar- 
ceny, so  long  as  larceny  involved  liability  of  subsequent  criminal 
punishment.  No  one  would  say  that  the  law  leaves  a  man  free 
to  commit  murder,  so  long  as  there  is  a  law  punishing  murder. 
Likewise  no  man  who  is  depending  purely  upon  the  phraseology 
of  the  constitution  will  ever  say  that  the  laws  leave  speech  and 
press  free,  so  long  as  there  is  any  law  which  prescribes  a 
penalty  for  the  mere  utterance  of  any  one's  sentiments,  merely 
as  such  utterance  and  independent  of  any  actually  accomplished 
injury  to  another. 

THE  ABUSE  OF  FREEDOM. 

On  the  other  hand,  it  would  seem  equally  certain,  to  the 
ordinary  understanding,  that  there  exists  no  legal  abridgment 
of  a  man's  freedom  to  speak  or  write  if  he  is  punishable 
for  the  abuse  of  that  freedom,  provided  we  mean  only  by 

150 


CONCERNING  THE    MEANING  OF      FREEDOM   OF   THE   PRESS. 

"abuse"  an  actual  and  not  a  mere  constructive  abuse:  that  is, 
provided  he  is  punished  only  for  an  actual  and  not  a  construc- 
tive injury,  resulting  from  his  utterance.  Manifestly  in  such 
a  case  he  is  not  punished  for  the  speech  as  such,  but  he  is 
punished  for  an  actual  ascertained  resultant  injury  to  some  one 
not  a  voluntary  adult  participant  in  the  act. 

His  utterance  in  that  case  may  be  evidence  of  his  complicity 
in,  or  contribution  to  that  actual  injury,  and  punishment  for  an 
actual  resultant  injury  is  not  in  the  least  an  abridgment  of  the 
right  to  speak  with  impunity,  since  manifestly  it  is  not  a 
punishment  for  mere  speaking  as  such,  the  essence  of  crimin- 
ality— the  criteria  of  guilt — being  something  other  than  the 
utterance  of  his  sentiments.  Manifestly,  in  this  view,  which  is 
but  the  natural  import  of  the  words  "freedom  of  speech  and  of 
press,"  the  expression  can  only  mean  that  a  man  shall  have  the 
right  to  utter  any  sentiment  that  he  may  please  to  utter  and  do 
so  with  impunity,  so  long  as  the  mere  utterance  of  his  senti- 
ments is  the  only  factor  in  the  case.  It  does  not  exempt  him 
from  punishment  for  murder,  arson  or  other  actual  and  resul- 
tant injury,  but  leaves  it  where  he  may  be  punished  for  his 
contribution  toward  and  participation  in  bringing  about  these 
injuries.  His  utterances  may  be  evidence  tending  to  show  his 
responsibility  for  the  actual  injury  which  is  penalized,  but  the 
penalty  attaches  on  account  of  that  injury,  and  can  never  be 
predicated  merely  upon  the  sentiments  uttered  without,  to  that 
extent,  abridging  our  freedom  to  utter.  When  the  statute  does 
this  the  constitutional  right  is  violated. 

ON   THE   MEANING   OF   WORDS. 

Both  the  words  "speech"  and  "press,"  as  used  in  our 
constitutions,  are  limitations  upon  the  word  "freedom"  as 
therein  used.  The  purpose  of  this  clause  is  to  preclude  the 
legislative  abridgment,  not  of  all  liberty,  but  of  liberty  only 
in  relation  to  two  subjects,  to  wit:  "speech"  and  "press." 
It  is  manifest  therefore  that  the  same  word  "freedom"  can- 
not change  its  meaning  according  to  whether  the  utterance  is 
oral  or  printed.  In  other  words,  "freedom"  must  mean  the 
same  thing  whether  it  relates  to  "speech"  or  "press."  In  the 
very  nature  of  things  "freedom  of  speech"  cannot  mean  mere 
absence  of  a  censor  to  whom  an  idea  must  be  submitted  be- 
fore utterance,  because  the  very  act  of  submitting  the  idea  to 
a  censor  implies  its  utterance.  Furthermore,  there  never 

151 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

was  a  time  when  a  censor  assumed  to  pass  upon  oral  speech, 
prior  to  its  utterance.  Unpopular  oral  speeches  were  punished 
only  after  utterance.  The  whole  controversy  over  "free- 
dom of  speech"  was  a  demand  that  speakers  might  be  free 
from  such  subsequent  punishment  for  those  of  their  utterances 
which  in  fact  had  not  actually  injured  anyone,  and  it  was 
that  controversy  which  the  framers  of  our  constitutions  in- 
tended to  decide  for  all  time,  by  guaranteeing  the  right  to 
speak  one's  sentiments  upon  any  subject  whatever,  and  with 
absolute  impunity  so  long  as  no  one  was  actually  injured  ex- 
cept by  his  voluntary  and  undeceived  consent,  as  when  the 
person  is  convinced  to  the  changing  of  his  opinion  about 
some  abstract  doctrine  of  morals  or  theology  the  acceptance 
of  which  his  neighbors  might  deem  a  deterioration,  and  the 
new  convert  esteem  as  a  moral  and  intellectual  advance. 
If,  as  I  believe,  this  is  the  inevitable  interpretation  of  "free- 
dom" in  relation  to  "speech,"  and  the  meaning  of  "freedom" 
in  relation  to  "press"  must  be  the  same,  then  we  are  irresist- 
ibly forced  to  the  conclusion  that  our  courts  have  been  wrong 
in  asserting  that  "freedom"  in  relation  to  the  press  means  only 
the  absence  of  a  censorship  prior  to  publication,  without  en- 
larging those  intellectual  liberties  which  are  beyond  the  reach 
of  legislative  abridgment. 

The  personal  and  psychologic  cause  of  this  judicial  destruc- 
tion of  constitutional  right  is  to  be  discovered  in  our  defective 
human  nature  which  almost  unavoidably  develops  in  judges, 
by  reason  of  the  very  character  of  the  function  which  they 
habitually  perform,  a  growing  lust  for  power,  so  strong  that 
very,  very  few  ever  acquire  sufficiently  critical  intellects  to 
check  it,  so  that  they  can  officially  acknowledge  the  right  of  an 
ordinary  citizen  at  the  bar  of  justice  to  damage  the  judge's 
vanity,  or  stimulate  his  emotions  of  aversion.  Thus  our  judges, 
(especially  through  contempt  proceedings  and  vague  penal 
statutes,  made  certain  by  judicial  legislation)  have  unconscious- 
ly demanded  and  secured  for  themselves  the  adulation  usually 
given  only  to  an  inerrant  pope  or  king,  and  have  almost  reduced 
the  judicial  bench  to  a  sacrificial  altar,  the  members  of  the  bar 
to  a  kind  of  lesser  priesthood,  whose  duty  it  is  at  least  by  silent 
acquiescence  to  keep  the  laity  in  ignorance  of  judicial  incom- 
petence and  iniquity,  and  in  an  attitude  of  suppliant  humility. 

Shall  this  condition  be  accentuated  and  become  definitely 
fixed  by  a  continuing  affirmance  of  the  judicial  destruction  of 

152 


CONCERNING  THE    MEANING  OF   "'FREEDOM   OF   THE  PRESS/' 

our  freedom  of  speech  and  of  the  press?  Will  the  process  of 
judically  amending  our  constitutions  by  the  interpolation  of 
limitations  upon  freedom  of  press  step,  or  shall  we  have  an  ever 
increasing  abridgment  of  such  liberty?  These  are  the  serious 
questions  which  confront  us. 

When  we  come  to  make  a  historical  study  of  the  meaning 
of  "freedom  of  the  press"  we  will  at  once  discover  that  the 
personal  elements  disappear,  to  be  replaced  by  humanistic 
considerations.  Now  it  is  not  merely  a  question  of  imprison- 
ment or  fines,  but  a  question  of  intellectual  opportunity,  not 
only  a  question  of  the  opportunity  to  speak,  but  of  the  more 
important  opportunity  of  the  whole  public  to  hear  and  to 
read  whatever  they  may  choose  when  all  are  free  to  offer. 
Now  it  ceases  to  be  a  matter  of  the  personal  liberty  of  the 
speaker  or  writer,  and  must  be  viewed  as  a  matter  of  racial 
intellectual  development,  by  keeping  open  all  the  avenues  for 
the  greatest  possible  interchange  of  ideas.  In  this  aspect  the 
most  important  feature  of  the  whole  controversy  simmers 
down  to  this  proposition,  namely:  that  every  idea,  no  matter 
how  unpopular  shall,  so  far  as  the  law  is  concerned,  have 
the  same  opportunity  as  every  other  idea,  no  matter  how 
popular,  to  secure  the  public  favor.  Of  course  only  those 
ideas  which  were  unpopular  with  the  ruling  classes  were  ever 
suppressed.  The  essence  of  the  demand  for  free  speech  was 
that  this  discrimination  should  cease.  In  other  words  every 
inequality  of  intellectual  opportunity,  due  to  legislative  en- 
actment, was  and  is  unwarranted  abridgment  of  our 
natural  liberty,  when  not  required  by  the  necessity  for  the 
preservation  of  another's  right  to  be  protected  against  actual 
material  injury. 

The  contention  stated  at  the  head  of  this  chapter  will  be 
amplified  in  statement,  and  will  receive  conclusive  historical 
justification,  when  we  come  to  the  chapter  on  the  scientific 
interpretation  of  freedom  of  speech.  Before  proceeding  there- 
with we  must,  however,  expose  the  mind-befogging  judicial 
dogmatism  upon  this  subject. 


153 


CHAPTER  IX. 

THE  JUDICIAL   DESTRUCTION    OF   FREEDOM    OF 

THE  PRESS.* 

It  seems  to  me  that  before  proceeding  to  the  direct  task  of 
interpreting  "freedom  of  the  press,"  it  is  desirable  that  we 
have  some  general  discussion  as  to  the  judicial  destruction  of 
liberty  of  the  press,  and  to  indicate  how  this  has  been  accom- 
plished. By  such  a  discussion  we  can  best  get  a  clear  under- 
standing as  to  the  issue  between  the  two  conflicting  view- 
points from  which  our  task  can  be  approached. 

Some  words  and  phrases  become  so  associated  with  emo- 
tions of  approval  that  we  instantly  avow  them  as  a  part  of  our 
creedal  declaration  of  faith,  though  very  often  we  have  no 
very  real  belief  in  nor  very  definite  conception  of  that  which 
the  words  symbolize.  This  is  often  illustrated  in  religion, 
where  men  give  avowed  support  to  creeds,  almost  every  detail 
of  which  they  will  repudiate  under  a  searching  cross-examina- 
tion. So  likewise  is  it  with  our  constitutionally  guaranteed 
"freedom  of  the  press."  As  a  general  proposition  every  one 
professes  belief  in  it  and  yet  in  the  concrete  apparently  nobody 
upholds  it,  except  for  self,  and  almost  everybody  can  be  relied 
upon  to  indorse  some  abridgment  of  freedom  of  the  press 
whenever  others  wish  to  use  that  freedom  to  express  anything 
radically  different  from  their  own  thoughts,  especially  if 
"moral"  sentimentalism  is  involved.  Thus  it  comes  that  men, 
trying  to  frame  definitions  of  freedom,  practically  always  leave 
a  loop  hole  for  at  least  their  own  pet  tyranny  and  censorship 
over  opinion. 

As  a  result  of  this,  all  but  universal,  emotional  disapproval 
of  unlimited  intellectual  liberty,  it  has  come  to  pass  that  our 
courts,  in  their  efforts  to  make  effective  the  judges'  disbelief  in 
freedom  of  the  press  though  construing  our  constitutional 
guarantee  of  it,  have  by  their  authoritative  dogmas  amended 
our  constitutions  with  the  judicial  interpolation  of  exceptions 

*Republished  from  The  Albany  Law  Journal  and  Government. 

154 


THE    JUDICIAL    DESTRUCTION    OF    FREEDOM    OF    THE    PRESS. 

never  even  vaguely  hinted  at  in  our  fundamental  laws.  The 
unintelligent  mob,  engrossed  with  its  necessary  sordid  self- 
seeking,  without  even  a  whispered  protest  has  acquiesced  in 
these  successive  encroachments  upon  the  liberty  of  the  press, 
until  to-day  there  is  not  a  state  in  the  union  whose  laws  do  not 
punish  the  mere  psychologic  crime  of  expressing  unpopular 
ideas,  even  though  no  one  is  shown  to  have  been  hurt  as  the 
result.  The  remarkable  thing  is  that  the  constitutionality  of 
those  laws  is  seldom  questioned,  and  when  the  paper  guarantee 
of  liberty  of  the  press  is  invoked,  the  courts  have  promptly 
and  almost  uniformly  amended  the  constitutional  guarantees 
of  freedom  of  speech  and  press  by  dogmatically  writing  into 
them  new  exceptions  and  limitations,  which  are  not  represented 
by  a  single  word  in  the  constitution  itself,  but  which  find 
abundant  justification  in  ancient  precedents  coming  from  courts 
whose  judges  were  tyrants,  or  the  minions  of  tyrants,  or  who, 
through  woefully  limited  intellectual  vision,  sought  to  define 
liberty  by  generalizing  a  single  fact,  and  thus  made  freedom 
mean  only  the  absence  of  the  one  particular  abridgment  of 
it,  which  alone  was  then  within  contemplation,  and  occupied 
a  place  so  near  as  to  obscure  the  more  remote  but  larger  possi- 
bilities for  the  tyrannous  invasion  of  liberty. 

When  moral  sentimentalizing  becomes  focused  about  one 
or  a  few  subjects,  by  being  widely  advertised  by  a  fanatical 
and  well  organized  band  of  zealots  which  lends  its  aid,  the 
courts,  with  the  concurrence  of  legislatures  and  in  spite  of 
constitutions,  exercise  a  power  to  amend  our  charter  of 
liberties  and  to  enforce  the  abridgment  of  the  freedom  of 
the  press.  To  this  end  it  is  only  necessary  to  neglect  one  simple 
rule  of  constitutional  construction.  This  done  and  under  the 
guise  of  interpretation,  meanings  and  exceptions,  which  are 
not  expressed  therein  by  a  single  word  or  syllable,  will  be, 
as  they  have  been,  dogmatically  read  into  the  constitutional 
phraseology,  instead  of  developing  the  actual  and  literal  signi- 
fication of  the  words  really  used.  English  precedents,  where 
only  discretion  tempers  tyranny,  can  be  easily  misapplied  to 
furnish  a  seeming  justification  for  a  judicial  "interpretation" 
such  as  effectively  accomplishes  the  judicial  amendment  of  our 
constitutional  guarantee  for  a  free  press.  Many  circumstances 
have  combined  to  induce  State  courts,  unconsciously,  to  inter- 
polate exceptions  into  the  free-press  clause  of  State  consti- 
tutions, and  so  precedents  have  already  been  made,  which  if 

155 


OBSCENE   LITERATURE   AND    CONSTITUTIONAL    LAW. 

followed  to  their  logical  conclusion  would  vest  all  American 
legislative  bodies  with  power  to  suppress  every  opinion  upon 
every  subject,  should  it  choose  to  do  so. 

Too  often  legislators  and  judges  have  been  afflicted  with 
political  myopia  and  so  have  seen  only  what  seemed  to  them 
the  beneficent  immediate  effect  of  their  official  destruction  of 
the  constitutionally  guaranteed  natural  liberty  of  the  citizen, 
and  because  of  this  shortsightedness  have  failed  to  see  how 
every  such  additional  liberty-invading  precedent  is  related  to 
the  ultimate  destruction  of  liberty  and  the  unavoidable  reaction 
through  revolution  by  violence.  Every  invasive  act,  acquiring 
even  a  seeming  acquiescence,  contributes  to  the  momentum  by 
which  we  are  increasingly  inspiring  thoughtful  men  with  a 
contempt  for  the  impotency  of  constitutional  protection,  and 
for  governments,  and  simultaneously  every  such  submission, 
even  to  a  popular  tyranny,  inspires  ambitious  zealots  with  new 
hope  for  the  realization  of  their  lust  for  power.  Thus  by 
gradual  stages  we  all  thoughtlessly  contribute  to  the  develop- 
ment of  that  tyranny  which  in  the  end  can  be  and  is  overthrown 
only  by  a  violent  revolution. 

THE  CONTEMPT  FOR   CONSTITUTIONS. 

It  is  by  such  processes,  for  which  the  courts  are  largely 
responsible,  that  all  constitutions  have  in  the  end  come  to  be 
held  in  contempt,  by  thoughtful  liberty-loving  men  as  well  as 
by  the  narrow-minded  with  autocratic  ambitions.  A  few  illus- 
trations will  suffice.  "  Ce  n'est  qu'en  Angleterre,  ou  Ton 
pourroit  faire  ni  avoir  des  livres  sur  des  constitutions,"  said 
one  of  the  most  enlightened  English  ambassadors  in  Europe; 
and  it  is  but  a  very  few  years  since  a  French  gentleman  an- 
swered a  foreigner  who  inquired  for  the  best  book  upon  the 
constitution  of  France,  "Monsieur,  c'est  1'Almanach  Royal."1 

Likewise,  in  England,  the  wise  and  calm  Herbert  Spencer 
said:  "Paper  constitutions  raise  smiles  on  the  faces  of  those 
who  have  observed  their  results,"  and  in  America  General 
Trumbull  is  reported  as  having  opined  that,  "The  constitution 
has  hardly  any  existence  in  this  country  except  as  rhetoric." 

This  sort  of  contempt  for  constitutional  guarantees  is  based 
upon  a  real  love  of  constitutional  liberty  and  despair  at  rinding 
its  guarantee  explained  away  by  those  whose  contempt  for  the 
constitution  is  based  upon  a  contempt  for  liberty  itself — a  lust 
for  the  power  of  an  autocrat.  Of  that  we  also  have  an  abund- 

JJohn  Adams  in  A  Defence  of  the  Constitutions  of  Government  of  the  U.  S. 

156 


THE 


THE    JUDICIAL    DESTRUCTION    OF    FREEDOM    OF    THE    PRESS. 

ance  in  the  United  States.  Years  ago  when  the  constitutionality 
of  some  anti-Morman  legislation  was  under  consideration, 
United  States  Senator  Cullom  is  reported  to  have  said  that  "in 
the  United  States  there  is  no  constitution  but  public  opinion." 
Later,  Congressman  Timothy  Sullivan  inspired  a  nation  with 
mirth,  but  not  with  resentment,  under  the  following  circum- 
stances: He  was  urging  President  Cleveland  to  sign  a  bill 
which  had  passed  the  Congress,  and  the  President  objected  be- 
cause he  believed  it  unconstitutional.  Our  earnest  statesman 
broke  in  with  this  plea,  "What's  the  constitution  as  between 
friends  ?"  And  so  it  is  with  our  professional  reformers.  We 
can  almost  hear  them  say :  "What's  the  constitution  when  our 
moral  sentimentalism  is  involved?"  We  also  find  President 
Roosevelt  and  his  Secretary  of  State  boldly  encouraging  con- 
tempt for  the  constitution  by  publicly  urging  its  judicial 
amendment.  President  Roosevelt  in  his  Harrisburg  speech 
said:  "We  need  through  executive  action,  through  legisla- 
tion, and  through  judicial  interpretation  and  construction  to 
increase  the  power  of  the  Federal  Government.  If  we  fail 
thus  to  increase  it  we  show  our  impotence."  Again,  read  the 
foregoing  in  the  light  of  Mr.  Root's  utterance.  "The  distin- 
guished Secretary  of  State  declared  that  it  was  useless  for 
the  advocates  of  State  rights  to  inveigh  against  the  extension 
of  national  authority,  *  *  *  and  that  constructions  of  the 
constitution  would  be  found  to  vest  the  power  in  the  national 
government."  Here,  then,  we  have  the  distinct  admission  by 
the  highest  officers  of  our  nation  that  they  desire  to  exercise  a 
power  which  according  to  their  own  view  the  constitution  does 
not  confer,  and  that  in  spite  of  their  official  oath  to  uphold  the 
constitution  as  it  is  they  proposed  to  amend  it,  not  by  the 
method  therein  prescribed,  but  in  contemptous  disregard  of 
the  constitution  itself  by  "executive  action,  through  legislation 
and  judicial  interpretation  and  construction"  to  accomplish  a 
perjured  usurpation  of  power  and  corresponding  destruction  of 
constitutional  liberty. 

When  lust  for  power  becomes  so  lawless  as  openly  and 
deliberately  to  justify  usurpation  and  official  perjury,  and  when 
such  conduct  does  not  in  the  least  impair  the  aspiring  auto- 
crat's popularity,  our  love  and  understanding  of  liberty  has 
come  to  a  very  low  ebb.  Will  our  courts  endorse  such  proc- 
esses as  applied  to  freedom  of  the  press  ? 

The  purpose  of  this  essay  is  primarily  to  protest  against  the 

157 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

judicial  amendment  of  constitutional  guarantee  of  liberty,  and 
specially  that  liberty  which  underlies  all  others,  the  liberty  to 
speak  and  to  read.  Only  by  way  of  contrast  will  we  be  con- 
cerned with  the  meaning  of  freedom  of  the  press  as  we  find  it 
abridged  in  actual  practice.  Here  it  is  intended  only  to  exhibit 
the  conflicting  view-points,  which  will  be  very  important  in 
answering  the  question,  What  ought  to  be  the  practical  effect 
and  judicial  significance  of  our  constitutional  guarantees  of 
freedom  of  the  press?  With  slight  variations  all  our  guaran- 
tees upon  this  subject  are  typified  by  these  words  of  our  fed- 
eral constitution.  "Congress  shall  make  no  law  *  *  *  abridg- 
ing the  freedom  of  speech  or  of  the  press."  How,  if  at  all, 
does  this  provision  operate  as  a  limitation  upon  the  congres- 
sional power  to  regulate  the  mails,  commerce,  etc.,  etc.? 

CONFLICTING  VIEW-POINTS. 

As  the  discussion  progresses,  it  is  important  to  keep  in 
mind  several  conflicting  view-points.  It  seems  to  me  that,  be- 
cause of  having  neglected  to  consider  these  diversities  of  view- 
point, courts  have  been  led  strangely  and  far  astray  in  their 
alleged  "interpretations"  of  "freedom  of  the  press."  Is  this  lan- 
guage of  the  constitution  to  be  interpreted  as  having  been  in- 
tended to  protect  or  enlarge  only  the  commercial  opportunity  of 
printing-press  owners,  or  is  it  from  the  view-point  of  a  pro- 
tected and  enlarged  intellectual  liberty  that  we  are  to  proceed 
to  the  task  of  interpretation?  Was  it  only  to  protect  the  per- 
sonal privilege  of  the  speaker  or  printer  to  utter  his  sentiments 
to  himself  in  solitude,  or  are  we  to  view  the  constitutional 
guarantee  also  from  the  view-point  of  protecting  all  the  rest  of 
humanity  in  an  opportunity  to  hear  and  to  read,  if  they  choose, 
anything  that  anyone  else  would  be  willing  to  communicate 
if  permitted? 

Was  it  achievement  of  the  first,  or  an  enlargement  of  in- 
tellectual liberty,  and  the  abolition  of  the  mere  psychologic 
crime  of  an  unfruitful  "immoral"  thinking  which  was  to  be  ac- 
complished ?  Can  it  be  that  the  only  object  of  the  f  ramers  of  our 
constitution  was  the  mere  abolition  of  a  censorship  before  pub- 
lication, in  favor  of  a  censorship  after  publication,  without  any 
actual  enlargement  of  intellectual  liberty?  Such  censorship 
prior  to  publication  had  been  abolished  in  England  prior  to 
the  American  revolution.  Did  the  makers  of  our  constitution 
believe  the  people  before  that  revolution  enjoyed  adequate 
liberty  of  the  press,  or  was  it  the  intention  by  our  constitutional 

158 


THE    JUDICIAL    DESTRUCTION    OF    FREEDOM    OF    THE    PRESS. 

guaranty  to  insure  an  enlargement  of  the  liberty  of  the  press 
above  that  which  had  been  enjoyed? 

Merely  to  ask  these  questions  would  seem  to  answer  them 
and  yet,  strange  to  say,  when  the  question  of  the  freedom  of 
the  press  has  come  up  for  judicial  interpretation,  courts  have 
usually  evaded  the  obvious  answer,  and  have  amended  the  con- 
stitution by  "interpretations"  which  interpolate,  and  which  leave 
our  freedom  just  where  it  was  in  England  before  the  revo- 
lution. 

In  order  to  interpret  " freedom  of  the  press"  correctly,  it 
seems  to  me  that  we  must  approach  our  problem  in  the  light 
of  the  pre-revolutionary  controversy  over  the  question  of 
intellectual  liberty,  which  controversy  our  constitution-makers 
intended  to  settle  for  all  time.  Under  the  English  system  there 
was  no  controlling  limitation  upon  the  parliamentary  power  to 
abridge  the  liberty  of  the  press,  and  such  freedom  was  enjoyed 
only,  according  to  parliamentary  discretion,  as  a  privilege 
exercised  by  permission,  and  not  as  a  constitutionally  protected 
right  which  could  be  exercised  with  impunity  in  spite  of  par- 
liamentary enactments  to  the  contrary.  Under  such  a  system  as 
the  English,  liberty  of  the  press  could  mean  only  such  remnant 
of  liberty  as  remained  after  parliamentary  abridgment.  Some 
American  courts,  erringly  accepting  the  English  judicial  prec- 
edents, have  defined  our  constitutional  freedom-as-a-right  to 
mean  only  what  freedom  had  been  declared  by  English  courts 
to  be  under  their  different  system,  wherein  was  defined  only 
the  liberty  which  was  a  matter  of  permission  by  royal  or  parlia- 
mentary munificence.  This  suggests  an  issue  as  to  whether  we 
shall  continue  to  misinterpret  our  unabridgable  constitutional 
"freedom  of  the  press"  to  mean  only  the  same  thing  as  that 
which,  prior  to  the  revolution,  the  English  courts  had  described 
as  their  abridgable  remnant  of  an  unguaranteed  freedom  by 
permission?  Or,  on  the  other  hand,  must  we  assume  that  our 
constitution  makers  intended  to  enlarge  our  intellectual  liberty 
in  accord  with  views  of  "freedom  of  the  press"  entertained  by 
those  who  were  opposing  the  English  (judicial)  conception? 
If  an  unabridged  intellectual  liberty  was  not  intended,  then 
there  was  no  need  of  any  mention  of  the  subject  in  our  consti- 
tutions. According  to  the  first  view  it  has  been  held  that,  not- 
withstanding our  constitutions,  freedom  of  the  press  may  be 
abridged  by  legislation  just  as  much  as  it  was,  or  can  be,  by 
the  English  parliament,  the  only  difference  being  as  to  method, 
the  constitution  prohibiting  only  censorship  prior  to  publica- 

159 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

tion,  but,  as  to  subject-matter,  having  an  equal  power  with  the 
English  parliament  to  suppress  and  punish  after  publication. 
Under  this  "interpretation,"  quite  generally  accepted  in  Amer- 
ica, the  constitution  only  changed  the  manner  of  censorship, 
somewhat  for  the  worse,  without  protecting  or  guaranteeing 
any  enlarged  intellectual  opportunity.  According  to  the  other 
view-point  the  constitution  was  designed  to  protect,  beyond  all 
possibility  of  abridgment,  an  enlarged  intellectual  opportunity, 
not  by  changing  the  manner  of  censoring,  or  the  time  of  appli- 
cation of  censorial  methods,  but  by  the  destruction  of  all  cen- 
sorship by  prohibiting  forever  any  punishment  of  any  sort,  for 
any  mere  intellectual  or  psychological  crime  of  any  nature 
whatever,  until  it  had  ceased  to  be  merely  a  psychological  crime, 
by  having  become  an  actually  realized  material  and  proved  in- 
jury to  some  actual  living  being,  or  the  imminent  menace  of 
such  injury,  determined  by  the  known  laws  of  the  physical  uni- 
verse, as  applied  to  some  overt  act  in  consummation  and  exe- 
cution of  an  expressed  desire  to  inflict  such  injury.  In  such 
event  no  speech,  merely  as  such,  is  punishable,  and  no  crime 
can  be  predicated  upon  uncertain  speculation  about  mere  psy- 
chologic tendencies.  The  crime  attaches  to  an  actual  injury 
actually  attempted  or  inflicted.  The  speech  is  only  the  evidence 
of  intent,  not  the  essence  of  the  offence.  This  view  still  awaits 
its  first  adequate  presentation  for  judicial  adoption  in  America. 
There  is  another  reason  why  the  judicial  statements  of  Eng- 
lish courts,  as  to  the  meaning  of  freedom  of  the  press,  are  of 
no  possible  value  as  precedents  in  the  interpretation  of  our 
constitutional  prohibition  against  the  abridgment  of  freedom 
of  the  press.  The  reason  will  be  manifest  upon  a  moment's 
reflection.  In  England  there  are  no  restrictions  upon  the  power 
of  parliament  to  prevent  its  abridgment  of  the  freedom  of  the 
press.  It  follows  that  declarations  of  English  courts,  therefore, 
are  not  the  judicial  interpretation  of  any  constitutional  clause 
or  right,  nor  the  declaration  of  any  general  principle  which 
could  control  the  validity  of  such  laws  either  in  England  or 
America.  On  the  contrary,  there  being  no  fundamental  and 
binding  restriction  on  parliament,  or  the  English  courts,  against 
abridging  freedom  of  the  press,  English  judicial  statements  as 
to  the  meaning  of  such  freedom  as  exists  in  England  could  not 
be  a  declaration  of  legal  principle  as  to  the  constitutional  limits 
of  such  liberty  in  the  United  States,  but  on  the  contrary  Eng- 
lish authorities  state  only  a  fact  of  observation,  namely  that 
under  English  conditions,  freedom  of  the  press  means  only  such 

160 


THE    JUDICIAL    DESTRUCTION    OF    FREEDOM    OF    THE    PRESS. 

limited  freedom  as  remains  after  its  abridgment,  in  the  par- 
liamentary exercise  of  an  unrestricted  power  to  abridge. 
In  other  words,  every  judicial  or  polemical  utterance  coming 
from  English  sources  is  the  declaration  of  what  they  mean  by 
freedom  of  the  press  when  such  liberty  is  liberty  by  permission 
of  parliament,  and  in  the  nature  of  things  this  can  furnish  no 
guide  as  to  what  is  meant  by  American  constitutions  which 
were  specifically  designed  to  abolish  English  conditions  upon 
the  subject  and  which  seek  to  establish  liberty  of  the  press  as 
a  right  in  spite  of  all  legislative  abridgments.  American 
courts,  by  neglecting  this  distinction,  have  erringly  followed 
English  statements  of  their  mere  facts  of  practice,  and  because 
we  mistook  them  for  declarations  of  constitutional  principles, 
and  used  them  as  guides  in  constitutional  construction,  our 
courts  have  almost  reduced  our  liberty  of  press  from  liberty- 
as-a-right  to  mere  liberty  as  a  matter  of  permission,  which  is 
not  liberty  at  all. 

To  accomplish  the  destruction  of  freedom  of  speech  and  of 
the  press  in  America  our  courts  dogmatically  assert  that  the 
purpose  of  the  constitution  was,  not  to  enlarge  the  intellectual 
liberty  of  the  citizen,  but  simply  to  replace  a  censorship  before 
printing  to  a  criminal  prosecution  for  having  printed  or  pub- 
lished. This  has  been  seemingly  justified  by  the  erroneous 
adoption  of  English  precedents  as  a  means  of  constitutional 
interpretation.  Of  course  the  judicial  way  of  stating  this  prop- 
osition adroitly  veils  that  direct  avowal  whose  blunt  absurdity 
my  form  of  statement  exposes.  Here  is  the  judicial  formula : 
"The  main  purpose  of  such  constitutional  provisions  is  'to  pre- 
vent all  such  previous  restraints  upon  publications  as  had  been 
practiced  by  other  governments'  arid  they  do  not  prevent  the 
subsequent  punishment  of  such  as  may  be  deemed  contrary  to 
public  welfare."2  There  you  have  it !  By  judicial  amendment 
our  constitutional  freedom  of  speech  and  of  the  press  has  been 
wholly  explained  away,  and  legislatures  and  courts  now  have 
the  right  to  punish  after  utterance  any  opinion  which  "may  be 
deemed  against  the  public  welfare,"  just  as  fully  as  such  opin- 
ions may  be  punished  in  Russia  or  Turkey.  Is  this  really  free- 
dom of  speech  and  of  press?  The  Supreme  Court  of  the  Uni- 
ted States,  the  final  arbiter  and  alleged  "guardian"  of  our  con- 
stitutional liberty,  in  the  last  above  quoted  sentence  has  said 
that  the  words  "Congress  shall  make  no  law  abridging  the 
freedom  of  speech  or  of  the  press,"  means  that  within  its 

"Patterson  v.  People,  27  Sup.  Ct.  Rep.  656-558. 

161 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

geographical  jurisdiction  the  courts  must  enforce  any  law 
which  congress  chooses  to  make  to  punish  the  verbal  utter- 
ance of  any  and  every  thought,  by  the  congress  "deemed 
contrary  to  public  welfare." 

The  expression  of  opinions  approved  by  those  in  power  had 
never  been  abridged.  Those  who  were  waging  the  battle  for 
intellectual  liberty  and  suffered  for  having  exercised  freedom 
of  speech  and  of  press,  thought  by  our  constitution  they  had 
finally  secured  protection  for  the  expression  of  those  unpopu- 
lar opinions  the  promulgation  of  which  had  theretofore  been 
punished  because  "deemed  against  the  public  welfare" — that  is, 
because  unpopular.  And  now  comes  our  Supreme  Court  and 
restores  the  pre-revolutionary  tyranny  over  ideas,  by  saying  in 
substance  that  "freedom  of  speech  and  of  the  press"  means  the 
right  to  be  punished  for  speaking  and  publishing  ideas  which 
are  deemed  against  the  public  welfare,  because  unpopular. 
Those  who  have  thought  a  constitutionally  guaranteed  free- 
dom to  speak  means  freedom  to  speak  with  impunity,  so  long 
as  no  one  is  actually  injured  thereby,  will  hereafter  understand 
that,  as  in  Russia,  our  liberty  is  but  a  liberty  by  permission, 
to  be  punished  whenever  exercised  without  that  permission  of 
our  masters,  who  have  limitless  power  to  punish  the  publica- 
tion of  unpopular  opinions,  "deemed  against  public  welfare." 
When  the  question  is  fairly  presented,  will  the  court  adhere  to 
this  pernicious  dictum?  The  judicial  opinion  hereinabove 
quoted  is  not  constitutional  interpretation,  but  judicial  consti- 
tutional amendment,  by  interpolation.  The  judicial  language 
was  never  derived  by  deductions  made  from  any  words  actually 
used  in  the  constitution,  but  on  the  contrary  they  were  judicially 
read  into  the  constitutional  phraseology,  thus  accomplishing  the 
judicial  amendment  of  our  constitution  by  unconstitutional 
methods,  and  utterly  destroying  "freedom  of  the  press"  as  a 
right,  and  creating  instead  a  liberty  by  permission.  Shall  this 
be  the  permanent  interpretation  of  our  constitutional  guarantee  ? 
This  is  the  question  to  be  decided,  and  is  by  far  the  most 
important  question  ever  presented  to  the  Supreme  Court  of  the 
United  States. 


162 


CHAPTER  X. 

JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE 

PRESS." 

If  we  may  determine  the  intellectual  bankruptcy  of  our 
American  judges  by  their  utter  incapacity  for  using  logical 
processes  in  the  presence  of  slight  emotional  irritation,  then 
I  fear  that  our  courts  must  be  adjudged  to  have  assumed  ob- 
ligations largely  in  excess  of  their  intellectual  resources.  This 
is  a  sweeping  and  a  terrible  indictment ;  but,  is  it  true  ?  To  me 
it  seems  to  be  true,  and  largely  upon  the  record  made  by  the 
courts  in  their  dogmatizing  concerning  "freedom  of  the  press." 

Where  the  constitutional  guarantee  of  "freedom  of  speech 
and  of  the  press"  is  involved  before  a  court,  unless  the  judge's 
emotions  and  unreasoned  sentimentalism  determined  his  "con- 
struction" of  the  constitution,  he  would  find  the  constitu- 
tional meaning  in  the  actual  words  of  that  instrument,  from 
which  the  court  would  deduce  a  criterion  of  "freedom"  for 
application  to  and  decision  of  the  case  before  it  and  all  others 
as  well.  Not  in  a  single  case  has  this  rational  method  ever 
been  attempted.  Instead  the  courts  have  drawn  on  their 
"inner  consciousness,"  and  by  consulting  only  their  temporary 
emotions  have  determined  what,  according  to  their  feeling-con- 
victions, the  Constitution  ought  to  be,  and  then  dogmatically 
decreed  this,  their  own  personal  will,  to  be  the  true  intent  and 
meaning  of  the  Constitution — that  is,  they  made  their  own 
personal  wish  to  be  the  Constitution  itself. 

But  my  critics  will  say  that  maybe  "freedom  of  speech" 
is  so  vague  a  phrase  as  not  to  permit  of  the  above  method  of 
interpretation  and  therefore  the  courts  should  not  be  criticised 
for  having  failed  to  use  it.  In  the  first  place,  I  do  not  believe 
the  phrase  in  question  to  be  so  vague  as  to  justify  any  other 
method  of  constitutional  construction.  Neither  do  the  courts 
believe  it ;  at  any  rate  not  one  court  has  ever  attempted  to  de- 
duce a  meaning — a  criterion  of  freedom  of  the  press — from 

163 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

the  words  of  the  constitution,  and  thereupon  decided  that'  it 
couldn't  be  done;  and,  what  is  more  important,  no  court  has 
ever  pursued  the  only  rational  alternative,  which  presents 
itself  when  the  constitutional  language  leaves  the  matter  in 
doubt. 

What  is  that  alternative?  If  the  constitutional  phrase 
"freedom  of  the  press,"  does  not  in  and  of  itself  furnish  the 
criteria  of  permissibility  in  intellectual  output,  the  court  should 
have  said  so,  and  accordingly  pursued  the  historical  method  of 
interpretation.  By  the  historical  or  scientific  method,  as  ap- 
plied to  this  problem,  I  understand  a  mode  of  research  into 
our  juridical  history  which  will  discover  to  us  those  controver- 
sies over  "freedom  of  speech  and  of  the  press"  which  had  oc- 
curred before  our  constitution,  and  which  issues  it  was  intended 
that  our  constitutions  should  settle  forever.  Furthermore,  a 
moderately  well  trained  mind  would  not  stop  at  a  mere  super- 
ficial view  of  these  past  contests.  It  is  not  enough  to  learn  that 
at  one  time  the  abridgment  of  free  utterance  was  concerned 
with  religion ;  at  a  second  with  the  divine  right  of  kings ;  at 
a  third  with  the  abolition  of  a  censor,  at  a  fourth  with  the  pen- 
alizing of  speech  without  reference  to  or  the  existence  of  a 
censor;  and  at  a  fifth  that  it  involved  the  right  to  denounce 
usury,  etc.,  etc.  I  say;  a  lawyer  whose  intellectual  attain- 
ments are  such  as  to  make  him  a  scientist  of  the  law,  would 
not  content  himself  with  the  superficial  view  or  tabulation  of 
these  controversies,  which  thus  present  so  varied  an  aspect, 
and  then  conclude  that  such  and  only  such  particular  abridg- 
ment was  involved  in  the  past  issues,  and  only  its  recur- 
rence precluded  by  our  constitutionally  guaranteed  unabridg- 
able  freedom  of  utterance.  That  is  the  method  of  those  afflicted 
with  arrested  intellectual  development.  In  contrast  to  this, 
the  scientifically  cultivated  mind  will  examine  all  these  particu- 
lar incidents  and  issues  of  the  past  abridgment  of  utterance, 
to  discover  the  fundamental  elements  common  to  them  all, 
though  imperfectly  seen  and  crudely  expressed  by  the  contro- 
versialists of  those  times.  These  elements,  common  to  all  these 
controversies,  the  legal  scientist  will  generalize  into  principles 
which  furnish  the  criteria  of  freedom  and  therein  find  the  true 
meaning  of  our  constitutional  guarantee  of  an  unabridged  free- 
dom of  utterance.  Although  the  opportunity  and  the  duty  to 
do  this  has  often  presented  itself  to  our  courts,  seemingly  no 


164 


JUDI 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS. 

judge  has  ever  been  able  to  see  it.  Even  in  the  few  cases 
where  the  courts  have  sustained  the  contention  in  favor  of 
freedom  of  utterance,  the  same  defective  intellectual  methods 
were  used.  The  courts  drew  on  their  "inner  consciousness," 
dogmatized,  and  made  arguments  showing  what  the  Constitu- 
tion ought  to  be,  rather  than  analyzing  what  it  is.  In  the  face 
of  this  fact,  may  we  not  assert  the  intellectual  bankruptcy  of 
our  judiciary? 

I  said  that  no  court  had  ever  pursued  the  historical  or 
scientific  method  of  inquiry  as  to  what  was  meant  by  an  un- 
abridged freedom  of  utterance.  They  have  done  something 
much  worse  than  merely  to  neglect  it.  In  their  blind  unintelli- 
gent gropings  for  something  tangible  upon  which  to  rest  their 
emotional  aversion  to  freedom  of  utterance,  they  adopted  the 
pre-revolutionary  declarations  of  English  authorities,  who  (like 
many  American  Judges)  were  all  passionately  opposed  to  free- 
dom of  criticism  of  established  opinions,  and  whose  utter- 
ances only  declared  the  existing  practise  under  a  system  which 
permitted  abridgment,  and  thus  made  freedom  to  speak  only  a 
freedom  by  permission,  with  admitted  power  to  withhold  that 
permission. 

Under  the  influence  of  their  emotional  aversion  to  free- 
speech,  our  judges  were  usually  unable  to  see  the  difference 
between  the  English  practise  of  an  abridgable  freedom  by 
permission,  where  only  expediency  tempers  tyranny,  and  the 
American  principle  of  an  unabridgable  freedom  of  utterance 
guaranteed  as  a  matter  of  right  and  to  be  maintained  in  spite 
of  all  considerations  of  expediency  to  the  contrary.  I  say,  our 
courts  have  uniformly  lacked  the  intellectual  capacity  to  see 
this  difference,  and  so  were  blindly  led  into  following  the  Eng- 
lish authorities  which  were  uniformly  opposed  to  freedom  of 
utterance.  By  adopting  their  statement  of  what  the  English 
practise  was  and  erroneously  mistaking  that  mere  fact  of 
practise  for  a  declaration  of  human  right  and  of  constitutional 
principles,  our  American  courts  •  have  dogmatically  amended 
our  constitutional  guarantees,  so  as  to  reduce  liberty  in  this 
respect  to  just  what  it  was  in  England  before  the  time  of  the 
American  Revolution.  Under  our  constitutions,  as  thus  judici- 
ally amended,  any  legislature  in  spite  of  the  constitution  as  it 
originally  was  written,  may  abridge  freedom  of  speech  and 
press  in  any  respect  in  which  it  and  the  judges  who  determine 
what  is  constitutional  shall  concur  in  approving,  and  declare 
to  be  in  the  interest  of  the  public  welfare. 

165 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

These  are  serious  charges  to  bring  against  our  courts,  and 
are  not  to  be  accepted  on  my  mere  assurance  that  I  believe 
them  to  be  true.  I  fear  it  would  be  no  more  satisfactory  if  I 
contented  myself  with  merely  citing  the  cases  which  have 
brought  me  to  this  conclusion,  because  no  one  would  take  the 
time  and  trouble  to  examine  them.  It  follows  that  if  I  would 
convince  anyone,  I  must  reproduce  the  essential  portion  of  all 
these  judicial  opinions.  To  do  this  will  require  much  space, 
but  that  cannot  be  avoided.  I  also  regret  very  much  that  like 
space-limits  will  not  allow  me  to  comment  separately  on  each 
specific  utterance  which  I  shall  quote,  and  thus  aid  the  sluggish 
mind  in  applying  the  foregoing  standards  of  judgment  to 
the  decisions  actually  rendered. 

However,  since  this  cannot  be  done,  I  can  only  request  the 
reader  to  keep  definitely  in  mind  what  I  have  said  above  as 
to  the  proper  method  of  judicial  interpretation,  and  in  the  light 
of  the  standards  thus  erected  to  read  the  following  liberty-de- 
stroying judicial  dogmatism,  of  the  most  pernicious  and  most 
inexcusable  sort.  What  follows  includes  all  the  quotable  and 
material  portions  of  the  reported  judicial  utterances  as  to  the 
meaning  of  "freedom  of  speech  and  the  press"  which  my  re- 
searches have  disclosed  to  me. 

ARKANSAS. 

State  vs.  Morrill,  16  Ark.  384  (40  2-3),  1855.  The  Arkan- 
sas Bill  of  Rights  provides:  (Sec.  7)  "That  printing  presses 
shall  be  free  to  every  person ;  and  no  law  shall  ever  be  made 
to  restrain  the  rights  thereof.  The  free  communication  of 
thoughts  and  opinions  is  one  of  the  invaluable  rights  of  man ; 
and  every  citizen  may  freely  speak,  write  and  print  on  any 
subject,  being  responsible  for  the  abuse  of  that  liberty."  The 
defendant  was  charged  with  criminal  contempt,  for  the  publi- 
cation of  an  article  supposed  to  intimate  that  the  court  had 
been  corruptly  influenced  in  the  determination  of  a  certain 
cause.  The  defendant  invoked  a  statute  limiting  the  power  to 
punish  for  contempt  to  which  the  Court  said :  "The  prohibitory 
clause  is  entitled  to  respect  as  an  opinion  of  the  legislature, 
but  is  not  binding  on  the  Courts,"  they  possessing  an  "in- 
herent" power  to  do  their  own  legislating,  even  ex  post  facto, 
on  the  subject  of  contempt. 

Upon  the  subject  of  the  Constitutional  right  of   freedom 
of  utterance  the  Court  said:  "The  last  clause  of  the  section, 

166 


JU] 


JUDICIAL    DOGMATISM    ON 

'being  responsible  for  the  abuse  of  that  liberty,'  is  an  answer 
to  the  argument  of  the  learned  counsel.    *   *   * 

"Any  citizen  has  the  right  to  publish  the  proceedings  and 
decisions  of  this  court,  and,  if  he  deem  it  necessary  for  the 
public  good,  to  comment  upon  them  freely,  discuss  their  cor- 
rectness, the  fitness  or  unfitness  of  the  judges  for  their  sta- 
tions, and  the  fidelity  with  which  they  perform  the  important 
public  trusts  reposed  in  them ;  but  he  has  no  right  to  attempt, 
by  defamatory  publications,  to  degrade  the  tribunal,  destroy 
public  confidence  in  it,  and  dispose  the  community  to  disregard 
and  set  at  naught  its  orders,  judgments  and  decrees.  Such 
publications  are  an  abuse  of  the  liberty  of  the  press,  and  tend 
to  sap  the  very  foundation  of  good  order  and  well  being  in 
society  by  obstructing  the  course  of  justice.  If  a  judge  is 
really  corrupt,  and  unworthy  of  the  station  which  he  holds, 
the  constitution  has  provided  an  ample  remedy  by  impeach- 
ment or  address  where  he  can  meet  his  accuser  face  to  face, 
and  his  conduct  may  undergo  a  full  investigation.  The  liberty 
of  the  press  is  one  thing  and  licentious  scandal  is  another. 
The  constitution  guarantees  to  every  man  the  right  to  acquire 
and  hold  property,  by  all  lawful  means ;  but  this  furnishes  no 
justification  to  a  man  to  rob  his  neighbor  of  his  lands  or 
goods." 

CALIFORNIA. 

The  California  Constitution  of  1879  provides:  "Every  citi- 
zen may  freely  speak,  write,  and  publish  his  sentiments  on  all 
subjects,  being  responsible  for  the  abuse  of  that  right;  and 
no  law  shall  be  passed  to  restrain  or  abridge  the  liberty  of 
speech  or  of  the  press." 

Ex  parte  Barry,  85  Cal.  603,  607-8;  25  Pac.  256.  (1890.) 
Habeas  Corpus  proceeding  on  commitment  for  contempt  in 
publishing  an  article  attacking  a  judge  for  conduct  in  pending 
action. 

The  Court  said :  "This  may  be  true  in  the  sense  that  the 
liberty  to  speak  and  write  on  any  subject  cannot  be  restricted 
or  prevented  in  advance,  and  that  the  only  remedy  is  to  punish 
subsequently,  for  any  publication  that  amounts  to  an  abuse  of 
such  liberty.  That  is  precisely  what  was  done  in  this  case. 
*  *  *  The  liberty  of  the  press  to  fairly  criticise  the  official 
conduct  of  a  judge  or  the  decisions  or  proceedings  of  the 
courts,  and  to  expose  and  bring  to  light  any  wrongful,  cor- 
rupt or  improper  act  of  a  judicial  officer,  is  one  that  should 

167 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

be  carefully  preserved  and  protected  by  the  courts.  *  *  * 
But  the  publisher  of  a  newspaper,  who  assumes  to  criticise  or 
censure  a  public  officer  or  the  proceedings  of  a  court,  must 
know  whereof  he  speaks.  If  he  censures  unjustly  or  charges 
falsely,  he  must  be  held  strictly  accountable.  While  his  right 
of  free  speech  is  protected,  his  abuse  of  it  must  be  punished. 
The  great  trouble  with  the  freedom  of  the  press  at  the  pres- 
ent day,  so  far  as  it  affects  the  courts,  is  that  it  is  used  in- 
discriminately in  many  cases,  not  with  the  laudable  purpose  of 
correcting  abuses  and  exposing  wrongdoing,  but  to  gratify  ill 
will  and  passion,  or  pander  to  the  passions  or  prejudices  of 
others.  This  tendency  should  be  severely  condemned  and  pun- 
ished, not  only  for  the  protection  of  the  courts  and  the  pres- 
ervation of  a  pure  and  independent  judiciary,  but  as  a  means 
of  upholding  the  liberty  of  the  press  in  its  true  sense."  Writ 
denied. 

Ex  parte  Shortridge,  99  Cal.  526.  (535).  (1893.)  Con- 
tempt proceeding  for  publishing  testimony  in  divorce  case  in 
violation  of  court  order,  Appellant  adjudged  not  guilty  by 
Supreme  Court  on  review. 

The  Court  said:  "Liberty  of  the  press  must  not  be  con- 
founded with  mere  license.  Liberty  of  the  press  stops  where 
a  further  exercise  would  invade  the  rights  of  others.  This 
provision  of  the  constitution  does  not  authorize  a  usurpation 
of  the  functions  of  the  courts.  Under  the  plea  of  the  liberty 
of  the  press,  a  newspaper  has  no  right  to  assail  litigants  during 
the  progress  of  a  trial,  intimidate  witnesses,  dictate  verdicts 
or  judgments,  or  spread  before  juries  its  opinion  of  the  merits 
of  cases  which  are  on  trial.  *  *  * 

"As  the  article  in  question  does  not  go  beyond  these 
limitations,  and  as  the  section  under  which  the  court  below 
proceeded  to  judgment,  clearly  does  not  authorize  the  order 
which  was  made,  the  proceedings  must  be  annulled." 

D ailey  v.  Superior  Court  of  San  Francisco,  112  Cal.  94 
(99,100).  (1896.)  Certiorari  to  review  order  forbidding  the 
public  performance  of  a  play  based  on  the  facts  of  a  pending 
criminal  trial.  Order  annulled. 

The  Court  said:  "The  purpose  of  this  provision  of  the 
constitution  was  the  abolishment  of  censorship,  and  for  courts 
to  act  as  censors  is  directly  violative  of  that  purpose.  [Then 
the  court  quotes  with  approval  Blackstone  and  those  follow- 

168 


JU1 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE    PRESS/' 

ing  him  and  then  concludes :]  In  effect  the  order  made  by  the 
trial  court  was  one  commanding  the  petitioner  not  to  commit  a 
contempt  of  court ;  and  such  a  practise  is  novel  in  the  extreme. 
*  *  *  We  conclude  that  the  order  made  by  the  trial  court 
was  an  attempted  restraint  upon  the  right  of  free  speech,  as 
guaranteed  by  the  Constitution  of  this  State,  and  that  peti- 
tioner's mouth  could  not  be  closed  in  advance  for  the  purpose 
of  preventing  an  utterance  of  his  sentiments,  however  mis- 
chievous the  prospective  results  of  such  utterance.  He  had  the 
right  of  free  speech,  but  at  all  times  was  responsible  to  the  law 
for  an  abuse  of  that  right." 

COLORADO. 

The  Colorado  Constitution  (  Art.  II,  sec.  10)  provides  "That 
no  law  shall  be  passed  impairing  the  freedom  of  speech,  that 
every  person  shall  be  free  to  speak,  write  or  publish  whatever 
he  will  on  any  subject,  being  responsible  for  all  abuse  of  that 
liberty." 

People  v.  Green,  7  Colo.  244  (250,251).  (1883.)  Dis- 
barment proceedings  for  insulting  a  judge  on  the  public  street. 
Defendant  found  guilty  and  disbarred.  Rehearing  denied. 

The  Court  said:  "In  this  country,  and  in  England  also, 
the  utmost  liberty  of  speech  is  guaranteed  by  statute  and  en- 
forced by  the  courts ;  the  right  to  discuss  all  matters  of  public 
interest  or  importance  is  everywhere  fully  recognized;  judicial 
decisions  and  conduct  form  no  exceptions  to  the  rule ;  the 
judge's  official  character,  and  his  acts  in  cases  fully  deter- 
mined, are  subject  to  examination  and  criticism;  in  most  of 
the  states  the  office  is  elective,  and  it  is  proper  and  right  that 
the  people  should  be  informed  of  the  occupant's  mental  and 
moral  fitness. 

"True,  under  the  guise  of  criticism  in  the  public  press, 
and  otherwise,  judges  are  often  compelled  to  endure  the  sting 
of  misrepresentation  and  calumny,  with  no  other  redress  than 
an  ordinary  civil  action ;  and  doubtless  it  sometimes  happens 
that  their  efficiency  in  office  is  hereby  lessened,  to  the  detri- 
ment and  injury  of  the  public  service ;  but  it  is  wisely  con- 
sidered better  that  these  wrongs  and  injuries  should  be  toler- 
ated, than  that  the  sacred  liberty  of  speech,  printed  or  spoken, 
should  be  abridged  by  lodging  an  arbitrary  power  to  interfere 
therewith  in  the  hands  of  the  court  of  judge,  so  long  as  such 
criticism  or  libel  is  not  designed  to  influence  the  mind  of  the 
judge  in  a  cause  still  undetermined."  *  *  * 

169 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

"But  we  have  found  no  case,  and  respondent  has  cited 
none,  which  extends  this  privilege  of  comment  and  criticism 
to  assaults,  verbal  or  physical,  upon  the  judge  in  person." 

Cooper  v.  People,  13  Colo.  337  (367)  ;  22  Pac.  R.  790; 
6  L.  R.  A.  430  (1889.)  Contempt  proceeding  for  news- 
paper censure  of  judicial  action  in  pending  case. 

The  Court,  after  quoting  Blackstone  and  others  accepting 
him  as  an  authority  in  Constitutional  construction,  affirming 
judgment  convicting  defendants,  said:  "We  would  not  for  a 
moment  sanction  any  contraction  of  the  freedom  of  the  press. 
Universal  experience  has  shown  that  such  freedom  is  neces- 
sary to  the  perpetuation  of  our  system  of  government  in  its 
integrity ;  but  this  freedom  does  not  license  unrestrained  scan- 
dal. By  a  subsequent  clause  of  the  same  sentence  of  our  state 
constitution  in  which  the  liberty  is  guaranteed,  the  respon- 
sibility of  its  abuse  is  fixed.  With  us  the  judiciary  is  elective, 
and  every  citizen  may  fully  and  freely  discuss  the  fitness  or 
unfitness  of  all  candidates  for  the  positions  to  which  they 
aspire;  criticize  freely  all  decisions  rendered,  and  by  legiti- 
mate argument  establish  their  soundness  or  unsoundness ;  com- 
ment on  the  fidelity  or  infidelity  with  which  judicial  officers 
discharge  their  duties;  but  the  right  to  attempt,  by  wanton 
defamation,  to  prejudice  the  right  of  litigants  in  a  pending 
cause,  degrade  the  tribunal,  and  impede,  embarrass  or  corrupt 
that  due  administration  of  justice  which  is  so  essential  to  good 
government,  cannot  be  sanctioned." 

People  v.  Stapleton,  33  Pac.  167  (173),  18  Colo.  567 
(586).  (1893.)  Contempt  proceeding  for  published  attack  on 
judges. 

The  Court  said :  "The  liberty  of  the  press  is  one  thing. 
The  'abuse  of  that  liberty'  is  quite  another.  The  former  is 
guaranteed  by  the  constitution.  The  latter  is  as  clearly  inter- 
dicted. If  the  liberty  of  the  press  is  abused,  the  offender  may 
be  held  responsible  therefor.  Such  is  the  common  law,  such  is 
our  constitutional  provision;  and  such  offenders  may  be  dealt 
with  summarily  for  contempt,  when  their  fabrications  are 
calculated  to  impede,  obstruct  or  embarrass  the  administra- 
tion of  justice.  It  has  not  been  deemed  expedient  by  our 
people  that  any  class  of  persons  should  be  privileged  to  attack 
the  courts,  with  the  view  to  interfere  with  the  rights  of  liti- 
gants, or  to  embarrass  the  administration  of  justice.  Hence 
they  have  never  adopted  any  constitutional  provision  granting 

170 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS. 

such  dangerous  license.  *  *  *  There  is  far  more  danger  to 
our  institutions,  and  far  more  danger  to  the  rights  of  the 
people,  and  especially  to  the  rights  of  litigants,  to  be  appre- 
hended from  the  power  of  the  press  over  the  courts,  than 
from  the  power  of  the  courts  over  the  press.  *  *  *  Thought- 
ful citizens  now  understand  that  the  danger  now  threatening 
our  institutions  is  that  courts  are  not  independent  enough, 
instead  of  being  too  arbitary. 

CONNECTICUT. 

The  Constitution  provides  :  "Every  citizen  may  freely 
speak,  write  and  publish  his  sentiments  on  all  subjects,  being 
responsible  for  the  abuse  of  that  liberty.  No  law  shall  ever  be 
passed  to  curtail  or  restrain  the  liberty  of  speech  or  of  the 
press." 

Atwater  v.  Morning  News  Co.,  67  Conn.  504  (518). 
(1896.)  Action  for  libel. 

The  Court  said:  "The  administration  of  the  law  (the 
libel  law)  is  concerned  with  two  most  important  rights;  the 
right  of  the  individual  to  reparation  for  malicious  injuries  to 
his  reputation,  and  the  right  of  the  people  to  liberty  of  speech 
and  of  the  press.  The  two  rights  are  not  inconsistant,  but  in- 
terdependent. The  individual  has  no  right  to  demand  repara- 
tion for  those  accidental  injuries  incident  to  organized  so- 
ciety. Freedom  of  the  press  is  the  offspring  of  law,  not  of 
lawlessness;  and  its  primary  meaning  excludes  all  notions  of 
malicious  injury.  Indeed,  any  true  freedom  of  the  press  be- 
comes impossible  where  malicious  injuries  are  not  forbidden 
and  punished ;  and  the  strongest  guaranty  of  that  freedom 
lies  in  an  impartial  administration  of  the  law  which  distin- 
guishes the  performance  of  a  public  or  social  duty  from  the 
infliction  of  a  malicious  injury." 

State  v.  McKee,  73  Conn.  18  (28,  29).  (1900.)  Appeal 
from  conviction  for  selling  a  newspaper  principally  made  up 
of  criminal  news,  etc.,  under  statute.  Appeal  sustained  on 
technical  grounds,  but  statute  held  constitutional  and  ap- 
proved. 

The  Court  said:  "There  is  no  constitutional  right  to 
publish  every  fact  or  statement  that  may  be  true.  Even  the 
right  to  publish  accurate  reports  of  judicial  proceedings  is 
limited.  *  *  *  The  primary  meaning  of  "liberty  of  the  press" 
as  understood  at  the  time  of  our  early  constitutions  were 
framed,  was  freedom  from  any  censorship  of  the  press.  *  *  * 

171 


OBSCENE   LITERATURE   AND    CONSTITUTIONAL    LAW. 

But  this  fundamental  guaranty  [the  constitutional  provision 
for  free  speech]  goes  further ;  it  recognizes  the  free  expression 
of  opinion  on  matters  of  church  or  state  as  essential  to  the 
successful  operation  of  free  government;  and  it  also  recog- 
nizes the  free  expression  of  opinion  on  any  subject  as  essential 
to  a  condition  of  civil  liberty.  The  right  to  discuss  public 
matters  stands  in  part  on  the  necessity  of  that  right  to  the 
operation  of  a  government  by  the  people,  but  with  this  exT 
ception ;  the  right  of  every  citizen  to  freely  express  his  senti- 
ments on  all  subjects  stands  on  the  broad  principle  which  sup- 
ports the  equal  right  of  all  to  exercise  gifts  of  property  and 
faculty  in  any  pursuit  in  life ;  in  other  words,  upon  the  essen- 
tial principles  of  civil  liberty  as  recognized  by  our  constitu- 
tion. Every  citizen  has  an  equal  right  to  use  his  mental  en- 
dowments, as  well  as  his  property,  in  any  harmless  occupation 
or  manner;  but  he  has  no  right  to  use  them  so  as  to  injure 
his  fellow-citizens  or  to  endanger  the  vital  interests  of  society. 
Immunity  in  the  mischievous  use  is  as  inconsistent  with  civil 
liberty  as  prohibition  of  the  harmless  use.  Both  arise  from 
the  equal  right  of  all  to  the  protection  of  law  in  the  enjoy- 
ment of  individual  freedom  of  action,  which  is  the  ultimate 
fundamental  principle.  *  *  *  The  liberty  protected  is  not 
the  right  to  perpetrate  acts  of  licentiousness,  or  any  act  in- 
consistent with  the  peace  or  safety  of  the  State.  Freedom 
of  speech  and  press  does  not  include  the  abuse  of  the  power 
of  tongue  or  pen,  any  more  than  freedom  of  other  action  in- 
cludes an  injurious  use  of  one's  occupation,  business  or  prop- 
erty. *  *  * 

"The  general  right  to  disseminate  opinions  on  all  subjects 
was  probably  specified  mainly  to  emphasize  the  strong  neces- 
sity to  a  free  government  of  criticism  of  public  men  and 
measures.  But  it  is  specified  as  one  of  the  conditions  of  civil 
liberty,  and,  like  other  conditions  of  a  similar  nature,  it  neces- 
sarily involves  the  protection  of  those  who  may  suffer  from 
the  wrongful  exercise  of  any  common  right.  *  *  * 

"The  notion  that  the  broad  guaranty  of  the  common  right 
to  free  speech  and  free  thought,  contained  in  our  constitution, 
is  intended  to  erect  a  bulwark  or  supply  a  place  of  refuge  in 
behalf  of  the  violaters  of  laws  enacted  for  the  protection  of 
society  from  the  contagion  of  moral  diseases,  belittles  the  con- 
ception of  constitutional  safeguards  and  implies  ignorance  of 
the  essentials  of  civil  liberty." 

172 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS." 
FLORIDA. 

The  Constitution  provides  that  "every  citizen  may  freely 
speak  and  write  his  sentiments  on  all  subjects,  being  respon- 
sible for  the  abuse  of  that  right,  and  no  law  shall  be  passed  to 
restrain  or  abridge  the  liberty  of  speech  or  press." 

Jones  v.  Townsend's  Administratrix,  21  Fla.  431  (450)  ; 
58  Am.  Rep.  676.  (1885.)  Action  for  libel. 

The  Court  said:  "The  liberty  of  the  press  means  simply 
that  no  previous  license  to  publish  shall  be  required,  but  not 
ttiat  the  publisher  of  a  newspaper  shall  be  any  less  responsible 
than  another  person  for  publishing  otherwise  the  same  libelous 
matter." 

ILLINOIS. 

The  Constitution  of  Illinois  (1818  and  1848)  provides:  "The 
free  communication  of  thoughts  and  opinions  is  one  of  the  in- 
valuable rights  of  man;  and  every  citizen  may  freely  speak, 
write,  and  print,  on  any  subject,  being  responsible  for  the 
abuse  of  that  liberty."  The  constitution  of  1870  is  substan- 
tially the  same  with  the  first  sentence  omitted. 

Stuart  v.  People,  4  ///.  395  (404,  405,  406).  (1842.) 
Action  for  contempt  for  publishing  an  article  alleged  to  re- 
flect on  Court  and  jury,  during  murder  trial. 

The  Court,  reversing  conviction,  said:  "Into  this  vortex 
of  constructive  contempts  have  been  drawn,  by  the  British 
Courts,  many  acts  which  have  no  tendency  to  obstruct  the  ad- 
ministration of  justice,  but  rather  to  wound  the  feelings,  or 
offend  the  personal  dignity  of  the  judge,  and  fines  imposed, 
and  imprisonment  denounced,  so  frequently,  and  with  so  little 
question,  as  to  have  ripened,  in  the  estimation  of  many,  into 
a  common  law  principle;  and  it  is  urged  that,  inasmuch  as 
the  common  law  is  in  force  here,  by  legislative  enactment,  this 
principle  is  also  in  force.  But  we  have  said  in  several  cases 
that  such  portions  only  of  the  common  law  as  are  applicable  to 
our  institutions,  and  suited  to  the  genius  of  our  people,  can  be 
regarded  as  in  force.  It  has  been  modified  by  the  prevalence 
of  free  principles,  and  the  general  improvement  of  society, 
and  whilst  we  admire  it  as  a  system,  having  no  blind  devotion 
for  its  errors  and  defects,  we  cannot  but  hope  that,  in  the 
progress  of  time,  it  will  receive  many  more  improvements,  and 
be  relieved  from  most  of  its  blemishes.  Constitutional  pro- 
visions are  much  safer  guarantees  for  civil  liberty  and  per- 

173 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

sonal  rights,  than  those  of  the  common  law,  however  much 
they  may  be  said  to  protect  them. 

"Our  Constitution  has  provided  that  the  printing  presses 
shall  be  free  to  every  person  who  may  undertake  to  examine 
the  proceedings  of  any  and  every  department  of  the  govern- 
ment; and  he  may  publish  the  truth,  if  the  matter  published 
is  proper  for  public  information ;  and  the  free  communication 
of  thoughts  and  opinions  is  encouraged. 

"The  contempt,  in  this  case,  was  by  a  printer  of  a  news- 
paper, remarking  on  the  conduct  of  an  individual  juror,  who, 
whilst  he  was  engaged  in  the  trial  of  a  capital  case,  and 
whilst  separated  from  the  public,  and  in  charge  of  the  officer 
of  the  Court,  was  furnishing  articles  for  daily  publication  in  a 
rival  newspaper ;  and  in  admitting  a  communication  from  a 
correspondent,  calculated  to  irritate  the  presiding  judge  of  the 
court,  though  not  reflecting  upon  his  integrity  or  in  any  way 
impeaching  his  conduct.  The  paragraphs  and  communication 
published  had  no  tendency  to  obstruct  the  administration  of 
justice ;  nor  were  they  thrust  upon  the  notice  of  the  Court,  by 
any  act  of  the  plaintiff  in  error.  *  *  * 

"An  honest,  independent  and  intelligent  court  will  win 
its  way  to  public  confidence,  in  spite  of  newspaper  paragraphs, 
however  pointed  may  be  their  wit  or  satire;  and  its  dignity 
will  suffer  less  by  passing  them  by  unnoticed,  than  by  arraign- 
ing the  perpetrators,  trying  them  in  a  summary  way;  and 
punishing  them  by  the  judgment  of  the  offended  party. 

"It  does  not  seem  to  me  necessary,  for  the  protection  of 
courts  in  the  exercise  of  their  legitimate  powers,  that  this  one, 
so  liable  to  abuse,  should  also  be  conceded  to  them.  It  may 
be  so  frequently  exercised  as  to  destroy  that  normal  influence 
which  is  their  best  possession,  until,  finally,  the  administration  of 
justice  is  brought  into  disrepute.  Respect  to  courts  cannot  be 
compelled;  it  is  the  voluntary  tribute  of  the  public  to  worth, 
virtue  and  intelligence ;  and  whilst  they  are  founded  upon  the 
judgment  seats,  so  long  and  no  longer  will  they  retain  the 
public  confidence. 

"If  a  judge  be  libelled  by  the  public  press,  he  and  his 
assailant  should  be  placed  on  equal  grounds,  and  their  com- 
mon arbiter  should  be  a  jury  of  the  country ;  and  if  he  has  re- 
ceived an  injury,  ample  remuneration  will  be  made. 

"In  restricting  the  power  to  punish  for  contempt,  to  the 
cases  specified,  more  benefits  will  result  than  by  enlarging  it. 

174 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE    PRESS/' 

It  is  at  best  an  arbitrary  power,  and  should  only  be  exercised 
on  the  preservative,  and  not  on  the  vindictive  principle.  It  is 
not  a  jewel  of  the  court,  to  be  admired  and  prized,  but  a  rod 
rather,  and  most  potent  when  rarely  used." 

People  v.  Wilson,  64  III.  195  (214,215).  (1872.)  Action 
for  contempt  for  publication  reflecting  on  the  action  of  the 
court  in  a  pending  matter. 

The  Court,  finding  defendants  guilty,  said :  "Let  us  say 
here,  and  so  plainly  that  our  position  can  be  misrepresented 
only  by  malice  or  gross  stupidity,  that  we  do  not  deprecate,  nor 
should  we  claim  the  right  to  punish  any  criticism  the  press 
may  choose  to  publish  upon  our  decisions,  opinions,  or  official 
conduct,  in  regard  to  cases  that  have  passed  from  our  juris- 
diction, so  long  as  our  action  is  correctly  stated,  and  our  official 
integrity  is  not  impeached.  The  respondents  are  correct  in 
saying  in  their  answers  that  they  have  a  right  to  examine  the 
proceedings  of  any  and  every  department  of  the  government. 

"Far  be  it  from  us  to  deny  that  right.  Such  freedom  of 
the  press  is  indispensable  to  the  preservation  of  the  freedom 
of  the  people.  But  certainly  neither  these  respondents  nor 
any  intelligent  person  connected  with  the  press,  and  having  a 
just  idea  of  its  responsibilities,  as  well  as  its  powers,  will 
claim  that  it  may  seek  to  control  the  administration  of  justice 
or  influence  the  decision  of  pending  causes.  *  *  * 

"Regard  it  in  whatever  light  we  may,  we  cannot  but 
consider  the  article  in  question  as  calculated  to  embarrass  the 
administration  of  justice,  whether  it  has  in  fact  done  so  or 
not,  and,  therefore,  as  falling  directly  within  the  definition  of 
punishable  contempts,  announced  by  this  court,  in  the  case  of 
Stuart  v.  The  People.  It  is  a  contempt,  because,  in  a  pending 
case  of  the  gravest  magnitude,  it  reflects  upon  the  action  of 
the  court,  impeaches  its  integrity,  and  seeks  to  intimidate  it 
by  the  threat  of  popular  clamor." 

Storey  v.  People,  79  ///.  45  (52-53)  (1875.)  Contempt 
proceeding  for  publishing  article  reflecting  on  the  Grand 
Jury.  Conviction  reversed. 

The  Court  said :  "This  language,  plain  and  explicit  as  it 
is,  cannot  be  held  to  have  no  application  to  courts,  or  those  by 
whom  they  are  conducted.  The  judiciary  is  elective ;  and  the 
jurors,  although  appointed,  are,  in  general,  appointed  by  a 
board  whose  members  are  elected  by  popular  vote.  There  is, 


175 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

therefore,  the  same  responsibility,  in  theory,  in  the  judicial 
department,  that  exists  in  the  legislative  and  executive  de- 
partments to  the  people,  for  the  diligent  and  faithful  discharge 
of  all  duties  enjoined  on  it  and  the  same  necessity  exists  for 
public  information  with  regard  to  the  conduct  and  character 
of  those  intrusted  to  discharge  those  duties,  in  order  that  the 
elective  franchise  shall  be  intelligibly  exercised,  as  obtains  in 
regard  to  the  other  departments  of  the  government." 

INDIANA. 

The  Indiana  Constitution  provides ;  "No  law  shall  be 
passed  restraining  the  free  interchange  of  thought  and  opinion, 
or  restricting  the  right  to  speak,  write,  or  print,  freely,  on  any 
subject  whatever;  but  for  the  abuse  of  that  right  every  person 
shall  be  held  responsible. 

Cheadle  v.  State,  no  Ind.  301  (312,313).  (1886.)  Ap- 
peal in  contempt  proceeding  for  publishing  articles  reflecting 
on  the  Court.  Appeal  sustained,  judgment  reversed. 

The  Court  said:  "There  are  cases  on  record  from  which 
an  inference  might  be  drawn  that  the  statement  in  question 
constituted  a  contempt,  as  it  was  doubtless  considered  in  this 
case;  but  it  must  be  borne  in  mind  that  the  force  of  public 
opinion  in  this  country,  in  favor  of  the  freedom  of  the  press, 
has  of  late  greatly  restrained  the  courts  in  the  exercise  of 
their  power  to  punish  persons  for  making  disrespectful  and 
injurious  publications.  *  *  *  No  one  ought  to  be  found 
guilty  upon  a  doubtful  charge  of  indirect  contempt,  and  espe- 
cially so  in  a  case  in  any  manner  involving  the  freedom  of  the 
press. 

"It  is  true  that  too  often,  under  the  guise  of  a  guaranteed 
freedom,  the  press  transcends  the  limits  of  manly  criticisms, 
and  resorts  to  methods  injurious  to  persons  and  tribunals 
justly  entitled  to  moral  support  of  all  law-abiding  citizens* 
but  such  digressions  are  not  always  unmixed  evils,  and  it  is 
only  in  rare  instances  that  legal  proceedings  in  repression  of 
such  a  license  can,  with  propriety,  be  resorted  to. 

"When  such  a  digression  becomes  too  flagrant  to  be  dis- 
regarded, a  prosecution  for  libel  is  usually  the  most  appropri- 
ate and  effective  remedy.  In  such  a  prosecution,  both  parties 
go  before  a  jury  of  the  country  on  terms  more  nearly  equal 
than  they  can  relatively  occupy  in  a  proceeding  for  the  punish- 
ment of  an  alleged  contempt." 

176 


/  . 


JJDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS. 
loemaker  v.  South  Bend  Spark  Arrester  Co.,  135  Ind. 
471  ^478).     (1893.)     Action  for  injunction  to  restrain  "false 
and  malicious  claims  of  the  title,"  etc. 

The  Court,  in  affirming  decision  granting  the  injunction, 
said:  "It  (the  case  of  Life  Assn.  v.  Boogher,  p.  173)  is  not 
only  out  of  line  with  the  holdings  of  this  court  upon  that  re- 
quest; but  it  holds  that  the  constitutional  guarantee  of  the 
freedom  of  the  press  and  of  speech  is  a  protection  to  one 
against  equitable  interference  in  publishing  false  and  injurious 
statements.  In  neither  of  these  positions  can  we  believe  it 
sound." 

IOWA. 

State  v.  Blair,  60  N.  W.  486  (487)  (Iowa).  (1894.) 
Indictment  for  publicly  professing  to  treat  diseases  without  a 
license.  The  Iowa  Constitution  provides  that  "every  person 
may  speak,  write  and  publish  his  sentiments  on  all  subjects, 
being  responsible  for  the  abuse  of  that  right.  No  law  shall 
be  passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the 
press." 

The  Court  said:  "The  statute  in  question  is  a  part  of  a 
chapter  regulating  'The  Practice  of  Pharmacy  and  the  Sale  of 
Medicine  and  Poisons,'  and  is  designed  to  guard  against  evil 
consequences  liable  to  result  therefrom.  The  prohibitive  fea- 
tures of  the  act  do  not  go  to  the  right  intended  to  be  secured 
by  the  Constitutional  provision  as  to  speaking,  writing  or  pub- 
lishing one's  sentiments,  or  as  to  abridging  or  restraining  the 
liberty  of  the  press." 

KANSAS. 

The  Kansas  Constitution  (Sec.  10  of  Bill  of  Rights) 
says:  "The  liberty  of  the  press  shall  be  inviolate;  and  all 
persons  may  freely  speak,  write  or  publish  their  sentiments 
on  all  subjects,  being  responsible  for  the  abuse  of  such  right." 
In  re  Pryor,  18  Kan.  72.  (76.)  (1877.)  Action  for 
contempt  for  writing  insulting  letter  to  a  judge,  during  pend- 
ency of  an  action. 

The  court  found  defendant  guilty,  but  added:  "It  will 
be  borne  in  mind  that  the  remarks  we  have  made  apply  only 
while  the  matter  which  gives  rise  to  the  words  or  acts  of  the 
attorney  are  pending  and  undetermined.  Other  considera- 
tions apply  after  the  matters  have  finally  been  determined,  the 
orders  signed,  or  the  judgment  entered.  For  no  judge  and  no 


177 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

court,  high  or  low,  is  beyond  the  reach  of  public  and  indi- 
vidual criticism.  After  a  case  is  disposed  of,  a  court  or  judge 
has  no  power  to  compel  the  public,  or  any  individual  thereof, 
attorney,  or  otherwise,  to  consider  his  rulings  correct,  his 
conduct  proper,  or  even  his  integrity  free  from  stain,  or  to 
punish  for  contempt  any  mere  criticism  or  animadversion 
thereon,  no  matter  how  severe  or  unjust." 

In  re  Banks,  56  Kan.  242  (243,  244).  (1895.)  Habeas 
Corpus  proceeding.  Petitioner  arrested  under  an  act  pro- 
hibiting the  sale  of  any  publication  "devoted  largely  to  the 
publication  of  scandals,  lechery,  assignation,  intrigues  be- 
tween men  and  women,  and  immoral  conduct  of  persons." 

The  Court  said:  "Without  doubt  a  newspaper,  the  most 
prominent  feature  of  which  is  items  detailing  the  immoral 
conduct  of  individuals,  spreading  out  to  public  view  an  un- 
savory mass  of  corruption  and  moral  degradation,  is  calcu- 
lated to  taint  the  social  atmosphere,  and  by  describing  in 
detail  the  means  resorted  to  by  immoral  persons  to  gratify 
their  propensities,  tends  especially  to  corrupt  the  morals  of 
the  young,  and  lead  them  into  vicious  paths  and  immoral  acts. 
We  entertain  no  doubt  that  the  legislature  has  power  to  sup- 
press this  class  of  publications,  without  in  any  manner  vio- 
lating the  constitutional  liberties  of  the  press." 

KENTUCKY. 

The  constitution  provides :  "Printing  presses  shall  be  free 
to  every  person  who  undertakes  to  examine  the  proceedings 
of  the  General  Assembly  or  any  branch  of  government;  and 
no  law  shall  ever  be  made  to  restrain  the  right  thereof.  Every 
person  may  freely  and  fully  speak,  write  and  print  on  any  sub- 
ject, being  responsible  for  the  abuse  of  that  liberty." 

Rilcy  v.  Lee,  88  Ky.  603  (612,  613,  614).  (1889.)  Action 
for  libel. 

The  Court  said :  "By  the  provisions  of  the  United  States 
and  the  state  constitutions  guaranteeing  the  'freedom  of  the 
press,'  it  was  simply  intended  to  secure  to  the  conductors  of 
the  press  the  same  rights  and  immunities  that  are  enjoyed  by 
the  public  at  large.  The  citizen  has  a  right  to  speak  the  truth 
in  reference  to  the  acts  of  government,  public  officials  or  in- 
dividuals. The  press  is  guaranteed  the  same  right,  but  no 
greater  right.  *  *  *  An  individual  may,  in  what  he  honestly 
believes  to  be  in  the  interest  of  morals  and  good  order,  and 
the  suppression  of  immorality  and  disorder,  criticise  the  acts 

178 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE    PRESS/' 

of  other  individuals.  So  may  the  press.  But  in  no  case  has 
the  citizen  the  right  to  injure  the  rights  of  others,  among  the 
most  sacred  of  which  is  the  right  to  good  name  and  fame. 
*  *  *  The  press  must  not  be  the  vehicle  of  attack  upon  the 
character  and  reputation  of  a  person  unless  the  attack  is 
known  to  be  true.  If  it  is  not  known  to  be  true,  do  not  pub- 
lish it.  The  publication  can  seldom,  if  ever,  do  good ;  and  the 
indulgence  in  publications  of  the  sort  not  strictly  true,  would 
soon  deprave  the  moral  taste  of  society,  and  render  it  miser- 
able." 

LOUISIANA. 

The  Constitution  of  Louisiana  provides:  "No  law  shall 
ever  be  passed  to  curtail  or  restrain  the  liberty  of  speech  or  of 
the  press ;  any  person  may  speak,  write,  and  publish  his  senti- 
ments on  all  subjects,  being  responsible  for  the  abuse  of  that 
liberty. 

State  v.  Goodwin,  37  La.  Ann.  713  (717).  (1885.) 
Appeal  from  conviction  for  mailing  threatening  letter.  Judg- 
ment affirmed. 

The  Court  said :  "It  is  a  libel  upon  the  noble  privilege  of 
free  speech,  guaranteed  by  our  Constitution,  to  say  that  it 
embraces  or  protects  such  despicable  practise." 

Fitzpatrick  v.  Pub.  Co.,  48  La.  Ann.  1116  (1130,  1135). 
(1896.)  Action  for  libel.  The  Court  said:  "There  is  a 
marked  and  clear  distinction  to  be  taken  between  the  liberty 
and  the  license  of  the  press.  *  *  *  The  freedom  of  speech 
and  liberty  of  the  press  were  designed  to  secure  constitutional 
immunity  for  the  expression  of  opinions,  but  that  does  not 
mean  unrestrained  license,  nor  does  it  confer  the  right  upon 
the  editor  of  a  newspaper  to  print  whatever  he  may  choose, 
no  matter  how  false,  malicious  or  injurious  it  may  be,  with- 
out full  responsibility  for  the  damage  he  may  cause." 

MARYLAND. 

The  Constitution  provides :  "That  the  liberty  of  the  press 
ought  to  be  inviolably  preserved ;  that  every  citizen  of  the  State 
ought  to  be  allowed  to  speak,  write  and  publish  his  sentiments 
on  all  subjects,  being  responsible  for  the  abuse  of  that  privi- 
lege." 

Negley  v.  Farrow,  60  Md.  158  (176,  177).  (1882.) 
Action  for  libel. 

The  Court  said :  "It  [liberty  of  the  press]  is  a  right  which, 


179 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

from  the  introduction  of  the  printing  press  down  to  the  year 
1694,  did  not  in  England  belong  to  the  subject.  On  the  con- 
trary, no  one  was  allowed  to  publish  any  printed  matter  with- 
out the  license  and  supervision  of  government,  and  it  was 
against  such  interference  on  the  part  of  the  government,  and  in 
favor  of  the  right  of  the  citizen,  that  this  provision,  found  its 
way  into  our  Bill  of  Rights.  *  *  *  The  liberty  of  the  press 
guaranteed  by  the  Constitution  is  a  right  belonging  to  every 
one,  whether  proprietor  of  a  newspaper  or  not,  to  publish  what- 
ever he  pleases,  without  the  license,  interference  or  control  of 
the  government,  being  responsible  alone  for  the  abuse  of 
the  privilege.  *  *  * 

"No  one  denies  the  right  of  the  defendants  to  discuss  and 
criticise  boldly  and  fearlessly  the  official  conduct  of  the  plain- 
tiff. It  is  a  right  which  in  every  free  country  belongs  to  the 
citizen ;  and  the  exercise  of  it,  within  lawful  and  proper  limits, 
affords  some  protection  at  least  against  official  abuse  and  cor- 
ruption. But  there  is  a  broad  distinction  between  fair  and 
legitimate  discussion  in  regard  to  the  conduct  of  a  public  man, 
and  the  imputation  of  a  corrupt  motive,  by  which  that  conduct 
may  be  supposed  to  be  governed.  And  if  any  one  goes  out  of 
his  way  to  asperse  the  personal  character  of  a  public  man,  and 
to  ascribe  to  him  base  and  corrupt  motives,  he  must  do  so  at 
his  peril,  and  must  either  prove  the  truth  of  what  he  says,  or 
answer  in  damages  to  the  party  injured." 

MASSACHUSETTS. 

The  Massachusetts  Bill  of  Rights  provides  that  "the  liber- 
ty of  the  press  is  essential  to  the  security  of  freedom  in  a  state ; 
it  ought  not  therefore  to  be  restrained  in  this  Commonwealth." 

Com.  v.  Blanding,  20  Mass.  (3  Pick},  304  (314-314). 
(1825.)  Action  for  criminal  libel.  The  Court  said:  "The 
liberty  of  the  press,  not  its  licentiousness,  this  is  the  con- 
struction which  a  just  regard  to  the  other  parts  of  that  instru- 
ment [the  Constitution]  and  to  the  wisdom  of  those  who 
formed  it,  requires.  *  *  *  Besides,  it  is  well  understood, 
and  received  as  a  commentary  on  this  provision  for  the  liberty 
of  the  press,  that  it  was  intended  to  prevent  all  such  previous 
restraints  upon  publications  as  had  been  practised  by  other 
governments,  and  in  early  times  here,  to  still  the  efforts  of 
patriots  towards  enlightening  their  fellow-subjects  upon  their 
rights  and  the  duties  of  rulers.  The  liberty  of  the  press  was 
to  be  unrestrained,  but  he  who  used  it  was  to  be  responsible 

1 80 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE    PRESS/' 

for  its  abuse ;  like  the  right  to  keep  fire  arms,  which  does  not 
protect  him  who  uses  them  for  annoyance  or  destruction." 

Com.  v.  Kne eland,  37  Mass.  (20  Pick.)  206  (219).  (1838.) 
Prosecution  for  blasphemy. 

The  Court  said:  "The  obvious  intent  of  this  provision 
was  to  prevent  the  enactment  of  license  laws,  or  other  direct 
restraints  upon  publication,  leaving  individuals  at  liberty  to 
print,  without  the  previous  permission  of  any  officer  of  govern- 
ment, subject  to  responsibility  for  the  matter  printed.  *  *  * 
The  intention  of  the  article  in  question  was,  to  ensure  the  gen- 
eral right  of  publication,  at  the  same  time  leaving  every  citi- 
zen responsible  for  any  offense  capable  of  being  committed  by 
the  use  of  language,  as  well  when  printed  as  when  oral,  or  in 
manuscript.  Any  other  construction  of  the  article  would  be 
absurd  and  impracticable,  and  inconsistent  with  the  peace 
and  safety  of  the  State,  and  with  the  existence  of  free  govern- 
ment." 

MINNESOTA. 

The  Constitution  (Art.  i,  p.  3),  provides:  "The  liberty 
of  the  press  shall  forever  remain  inviolate,  and  all  persons  may 
freely  speak,  write  and  publish  their  sentiments  on  all  sub- 
jects, being  responsible  for  the  abuse  of  such  rights." 

State  v.  Pioneer  Press  Co.,  no  N.  W.  (Minn.)  867, 
(868,  869),  (1907).  Indictment  for  publishing  details  of  an 
official  execution  contrary  to  statute. 

The  Court  said :  "Appellant . . .  argues  that  there  are  no 
constitutional  limitations  upon  the  liberty  of  the  press,  unless 
the  subject  matter  be  blasphemous,  obscene,  seditious  or 
scandalous  in  its  character.  This  is  altogether  too  restricted 
a  view.  The  principle  is  the  same,  whether  the  subject  matter 
of  the  publication  is  distinctly  blasphemous,  seditious  or  scan- 
dalous, or  of  such  character  as  naturally  tends  to  excite  the 
public  mind  and  thus  indirectly  affect  the  public  good.  If  the 
constitutional  provision  has  reference  to  restricting  the  pub- 
lication by  newspapers  of  unwholesome  matter,  or  the  use  of 
the  United  States  mails  for  the  distribution  of  obscene  litera- 
ture *  *  *  or  the  publishing  of  Anarchistic  doctrines  *  *  * 
upon  the  ground  that  it  is  in  the  interest  of  public  morals,  then 
for  the  same  reason  the  right  of  restriction  applies  to  pub- 
lishing details  of  criminal  executions.  The  article  in  question 
is  moderate,  and  does  not  resort  to  any  unusual  language,  or 

181 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

exhibit  cartoons  for  the  purpose  of  emphasizing  the  horrors 
of  executing  the  death  penalty,  but  if,  in  the  opinion  of  the 
Legislature,  it  is  detrimental  to  pubic  morals  to  publish  any- 
thing more  than  the  mere  fact  that  the  execution  has  taken 
place,  then,  under  the  authorities  and  upon  principle,  the  ap- 
pellant was  not  deprived  of  any  constitutional  right  in  being 
so  limited." 

MISSISSIPPI. 

The  Constitution  (Art.  I,  p.  6)  provides  that  "every 
citizen  may  freely  speak,  write  and  publish  his  sentiments  on 
all  subjests,  being  responsible  for  the  abuse  of  that  liberty." 

Ex  Parte  Hickzy,  12  Miss.  (4  Sm,  &  M.)  781  (782). 
(1844.)  Action  for  contempt  in  denouncing  the  act  of  a 
judge. 

The  Court  said :  "The  shield  which  our  constitution  throws 
around  the  press  has  been  held  up  to  interpose  before  the 
power  of  the  courts  to  punish  for  contempts.  The  most  dearly 
prized  offspring  of  our  national  liberty  is  the  freedom  of  the 
press.  It  is  so,  because  it  can  be  made  its  most  effectual  pro- 
tection at  home,  and  because  it  can  be  employed  as  the  apostle 
of  those  liberties  to  millions  abroad.  The  worst  enemy  to 
freedom  is  ignorance.  Instruct  men  in  the  knowledge  of  their 
rights,  and  a  vindication  of  those  rights  follows  as  surely  as 
light  follows  the  rising  sun.  Yet  the  freedom  of  the  press  is 
abused  to  base  and  unworthy  purposes.  Such  indeed,  as  sad 
experience  teaches,  is  often  the  melancholy  fate  of  the  great- 
est blessings  that  a  wise  providence  has  bestowed  upon  us, 
or  that  human  skill  has  invented.  The  free  air  we  breathe  is 
essential  to  our  existence,  but  when  infected  with  pestilential 
matter  it  becomes  the  most  terrible  weapon  of  death.  But 
who  would  argue,  because  disease  may  float  in  the  atmos- 
phere, that  that  atmosphere  should  be  destroyed." 

MISSOURI. 

The  Constitution  (Art  II,  Sec.  14)  provides :  "That  no  law 
shall  be  passed  impairing  the  freedom  of  speech ;  that  every  per- 
son shall  be  free  to  say,  write  or  publish  whatever  he  will  on 
any  subject,  being  responsible  for  all  abuse  of  that  liberty." 

Life  Assn.  of  America  v.  Boogher,  3  Mo.  App.  173  (180). 
(1876.)  Action  for  injunction  against  publication  of  libel. 
The  Court,  holding  that  such  injunction  could  not  lie,  said: 
"If  it  be  said  that  the  right  to  speak,  write  or  print,  thus  se- 

182 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS. 

cured  to  every  one,  cannot  be  construed  to  mean  a  license  to 
wantonly  injure  another,  and  that  by  the  jurisdiction  claimed 
it  is  only  suspended  until  it  can  be  determined  judicially 
whether  the  exercise  of  it  in  the  particular  case  be  allowable, 
our  answer  is  that  we  have  no  power  to  suspend  that  right  for 
a  moment,  or  for  any  purpose?  The  sovereign  power  has  for- 
bidden any  instrumentality  of  the  government  it  has  instituted 
to  limit  or  restrain  this  right  except  by  the  fear  of  the  penalty, 
civil  or  criminal,  which  may  wait  on  abuse.  The  General  As- 
sembly can  pass  no  law  abridging  the  freedom  of  speech  or  of 
the  press ;  it  can  only  punish  the  licentious  abuse  of  that  free- 
dom. Courts  of  justice  can  only  administer  the  laws  of  the 
State,  and,  of  course,  can  do  nothing  by  way  of  judicial  sen- 
tence which  the  General  Assembly  has  no  power  to  sanction. 
The  matter  is  too  plain  for  detailed  illustration." 

Flint  v.  Hutchinson  Smoke  Burner  Co.,  no  Mo.  492  (500, 
501).  (1892.)  Action  for  injunction  to  restrain  libel  of 
title. 

The  Court  said:  "We  live  under  a  written  constitution 
which  declares  that  the  right  of  trial  by  jury  shall  remain  in- 
violate ;  and  the  question  of  libel  or  no  libel,  slander  or  no, 
slander,  is  one  for  a  jury  to  determine.  Such  was  certainly 
the  settled  law  when  the  various  constitutions  of  this  state 
were  adopted ;  and  it  is  all-important  that  the  right  thus 
guarded  should  not  be  disturbed.  It  goes  hand  in  hand  with 
the  liberty  of  the  press  and  free  speech.  For  unbridled  use  of 
the  tongue  or  pen  the  law  furnishes  a  remedy.  In  view  of 
these  considerations,  a  court  of  equity  has  no  power  to  re- 
strain a  slander  or  libel ;  and  it  can  make  no  difference 
whether  the  words  are  spoken  of  a  person  or  his  title  to  prop- 
erty." 

State  v.  Van  Wye,  136  Mo.  277  (234,  235).  (1896.) 
Indictment  for  disseminating  a  "scandalous  newspaper." 

The  Court  said :  "The  liberty  of  the  press,  says  Lord 
Mansfield,  in  King  vs.  Dean  of  St.  Asaph,  cited  in  3  T.  R.  431, 
'consists  in  printing  without  any  previous  license,  subject, 
to  the  consequences  of  the  law.'  Lord  Ellenborough  defines  it 
in  Rex  v.  Cobbett  29  Howells  State  Trials,  49,  in  this  way: 
The  law  of  England  is  a  law  of  liberty,  and,  consistently  with 
this  liberty,  we  have  not  what  is  called  an  imprimatur;  but  if 
a  man  publish  a  paper,  he  is  exposed  to  the  penal  consequences, 
as  he  is  in  every  other  act,  if  it  is  illegal.'  *  *  *  The  constitu- 

183 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

tional  liberty  of  speech  and  the  press,  as  we  understand  it,  sim- 
ply guarantees  the  right  to  freely  utter  and  publish  whatever 
the  citizen  may  desire  and  to  be  protected  in  so  doing,  provided 
always  that  such  publications  are  not  blasphemous,  obscene  and 
scandalous  in  their  character,  so  that  they  become  an  offense 
against  the  public,  and  by  their  malice  and  falsehood  injurious- 
ly affect  the  character,  reputation  or  pecuniary  interests  of  in- 
dividuals. The  constitutional  protection  shields  no  one  from 
responsibility  for  abuse  of  this  right.  To  hold  that  it  did  would 
be  a  cruel  libel  upon  the  bill  of  rights  itself.  The  laws  punish- 
ing criminal  libel  have  never  been  deemed  an  infringement  of 
this  constitutional  guaranty.  Equally  numerous  and  strong  are 
the  decisions  that  obscene  publications  are  without  the  pro- 
tection of  this  provision  of  our  constitution." 

Marx  &  Haas  Jeans  Clothing  Co.  v.  Watson  et  al.,  168 
Mo.  133  (144,  150).  (1901.)  Appeal  from  refusal  of  lower 
court  to  enjoin  boycotting  circular.  Appeal  dismissed. 

The  Court  said :  "Wherever  within  our  borders  speech  is 
uttered,  writing  done  or  publication  made,  there  stands  the 
constitutional  guaranty  giving  staunch  assurance  that  each  and 
every  one  of  them  shall  be  -free.  The  Legislature  cannot  pass 
a  law  which  even  impairs  the  freedom  of  speech ;  and  as  there 
are  no  exceptions  contained  in  the  rest  of  the  quoted  section, 
the  language  there  used  stands  as  an  affirmative  prescripiton 
against  any  exception  being  thereto  made,  as  effectually  as  if 
words  of  negation  or  prohibition  had  expressly  and  in  terms 
been  employed.  *  *  *  If  these  defendants  are  not  per- 
mitted to  tell  the  story  of  their  wrongs,  or,  if  you  please,  their 
supposed  wrongs,  by  words  of  mouth  or  with  pen  or  print,  and 
to  endeavor  to  persuade  others  to  aid  them  by  all  peaceable 
means,  in  securing  redress  of  such  wrongs,  what  becomes  of 
free  speech,  and  what  of  personal  liberty?  The  fact  that  in 
exercising  that  freedom  they  thereby  do  plaintiff  an  actionable 
injury,  such  fact  does  not  go  a  hair  towards  a  diminution  of 
their  right  of  free  speech,  etc.,  for  the  exercise  of  which,  if  re- 
sulting in  such  injury,  the  Constitution  makes  them  expressly 
responsible.  But  such  responsibility  is  utterly  incompatible 
with  authority  in  a  court  of  equity  to  prevent  such  responsi- 
bility from  occurring. 

State  ex.  inf.  Crow  v.  Shepherd,  177  Mo.  205  (253,  257) 
(1903.)  Action  for  contempt  in  censuring  a  judgment  of  the 
Supreme  Court. 

184. 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS. 

The  Court,  adjudging  defendant  guilty,  said:  "The 
liberty  of  the  press  means  that  any  one  can  publish  anything 
he  pleases,  but  he  is  liable  for  the  abuse  of  that  liberty.  If  he 
does  this  by  scandalizing  the  courts  of  his  country,  he  is  liable 
to  be  punished  for  contempt.  If  he  slanders  his  fellow-men, 
he  is  liable  to  a  criminal  prosecution  for  libel,  and  to  respond 
civilly,  in  damages  for  the  injury  he  does  to  the  individual. 
In  other  words,  the  abuse  of  the  privilege  consists,  principally, 
in  not  telling  the  truth.  *  *  *  It  is  the  liberty  of  the  press 
that  is  guaranteed — not  the  licentiousness.  It  is  the  right  to 
speak  the  truth — not  the  right  to  bear  false  witness  against 
your  neighbor.  Every  citizen  has  a  constitutional  right  to  the 
enjoyment  of  his  character  as  well  as  to  the  ownership  of  his 
property;  and  this  right  is  as  sacred  as  the  liberty  of  the 
press." 

MONTANA. 

The  Constitution  provides:  "No  law  shall  be  passed  im- 
pairing the  freedom  of  speech ;  every  person  shall  be  free  to 
speak,  write  or  publish  whatever  he  will  upon  any  subject, 
being  responsible  for  all  abuse  of  that  liberty." 

In  re  Shannon,  n  Mont.  67  (72).  (1891.)  Habeas 
corpus  in  contempt  proceeding  for  criticism  of  courts.  Writ 
granted. 

The  Court  said:  "None  of  these  [i.e.,  the  legal  grounds 
for  commitment  for  contempt],  would  include  power  to  punish 
for  the  expression  of  sentiments  through  the  medium  of  the 
public  press  or  otherwise  regarding  the  practise  of  the  Court, 
or  of  results  or  abuses  alleged  to  flow  from  the  past  adminis- 
tration of  said  Court.  A  power  to  punish  for  such  utterance, 
or  to  silence  the  voice  of  comment  upon  such  matters,  would 
be  the  discovery  of  an  unknown  quantity  in  jurisprudence; 
and  the  exercise  of  it  would  be  a  menace  to  a  free  and  spirited 
people. 

"The  constitutional  right  of  freedom  of  speech  *  *  * 
would  be  set  at  naught  by  the  exercise  of  such  a  power,  when- 
ever that  freedom  of  speech  happened  to  be  directed  to  the 
action  of  public  courts.  There  is  no  such  exception.  We 
speak  now  of  the  discussion  of  matters  pertaining  to  courts, 
or  the  practise  therein,  which  have  no  tendency  to  affect  the 
merits  or  result  of  particular  cases  pending,  which  class  of  de- 
cision is  entirely  distinguished  from  publications  which  are 

185 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

designed  and  put  forth  for  the  purpose  and  have  a  tendency  to 
influence  the  result  of  particular  cases." 

In  re  Macknight,  n  Mont.  126  (138)  ;  27  Pac.  R.  &  336 
(339).  (1891.)  Contempt  proceeding.  In  deciding  that  the 
case  fell  within  the  "constitutional  sanction  of  the  freedom 
of  speech  and  press,"  the  Court  said: 

"What  was  the  purpose  of  this  constitutional  guarantee? 
Was  it  to  grant  freedom  to  ordinary  speech  and  publication 
which  could  excite  the  resentment  of  no  one?  If  that  was 
the  purpose,  then  it  would  be  as  needful  to  put  into  the  Con- 
stitution a  provision  that  people  may  freely  walk  the  streets 
quietly  and  peaceably.  The  history  of  the  struggle  for  su- 
premacy of  certain  principles  and  ideas  shows  the  purpose  of 
the  law,  when  such  principles  or  ideas  are  clothed  with  that 
force  and  dignity,  and  inscribed  upon  our  Constitution  or 
statute.  And  so  the  history  of  the  struggle  for  the  establish- 
ment of  the  principle  of  freedom  of  speech  and  press  shows 
that  it  was  not  ordinary  talk  and  publication,  which  was  to  be 
disenthralled  from  censorship,  suppression  and  punishment. 
It  was  in  a  large  degree  a  species  of  talk  and  publication 
which  had  been  found  distasteful  to  governmental  powers  and 
agencies." 

State  v.  Faulds,  17  Mont.  140  (145).  (1895.)  Action 
for  contempt  in  publishing  abuse  of  Court. 

The  Court  said:  "Section  10,  Article  3,  of  the  Constitu- 
tion of  the  State  provides  that  no  law  shall  be  passed  impair- 
ing the  freedom  of  speech ;  every  person  shall  be  free  to  speak, 
write  or  publish  whatever  he  will  on  any  subject,  being  re- 
sponsible for  all  abuse  of  that  liberty.  While  this  section  of 
the  Constitution  secures  the  largest  liberty  to  the  press,  it  also 
imposes  responsibilities.  It  is  a  statute  of  liberty,  not  of 
'licentious  scandal/  The  liberty  of  the  press  is  one  thing; 
the  abuse  of  that  liberty  is  quite  another." 

NEBRASKA. 

The  Constitution  provides :  "Every  person  may  freely 
speak,  write  and  publish  on  all  subjects,  being  responsible  for 
the  abuse  of  the  liberty." 

State  v.  Bee  Publishing  Co.,  60  Neb.  282  (296).  (1900.) 
Contempt  proceeding  for  publication  of  articles  designed  to 
affect  the  decision  of  a  pending  case.  Defendant  convicted. 

The  Court  said:    "We  have,  of  course,  no  desire  to  re- 

186 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS/ 

strain  in  the  slightest  degree,  the  freedom  of  the  press,  or  to 
maintain  the  dignity  of  the  Court  by  inflicting  penalties  on 
those  who  may  assail  us  with  defamatory  publications.  Our 
decisions  and  all  our  official  actions  are  public  property,  and 
the  press  and  the  people  have  the  undoubted  right  to  comment 
on  them  and  criticise  and  censure  them  as  they  see  fit.  Ju- 
dicial officers,  like  other  public  servants,  must  answer  for  their 
official  actions,  before  the  chancery  of  public  opinion;  they 
must  make  good  their  claims  to  popular  esteem  by  excellence 
and  virtue,  by  faithful  and  efficient  service  and  by  righteous 
conduct.  But  while  we  concede  to  the  press  the  right  to  criti- 
cise freely  our  decisions  when  made,  we  deny  to  any  indi- 
vidual or  to  any  class  of  men  the  right  to  subject  us  to  any 
form  of  coercion  with  the  view  of  affecting  our  judgment  in 
a  pending  case." 

State  v.  Rosewater,  60  Neb.  438  (439).  (1900.)  Con- 
tempt proceeding  for  publication  of  articles  designed  to  affect 
the  decision  of  a  pending  case.  Defendant  convicted. 

The  Court  said :  "We  are  told  that  the  liberty  of  the  press 
is  involved,  and  that  this  proceeding  is  an  arbitrary  exercise 
of  power,  curtailing  that  freedom  which  is  necessary  for  the 
conservation  of  public  interests,  and  a  free  discussion  of  all 
questions  of  public  concern.  With  the  same  speciousness  and 
plausibility  of  reasoning,  it  might  as  well  be  argued  that  the 
liberty  of  the  individual  is  endangered  who  corruptly  tampers 
with  a  jury  to  secure  an  unrighteous  verdict,  or  attempts  to 
improperly  influence  the  decision  of  a  court  in  a  case  then 
pending  before  it.  The  issue  involved  is  not  one  of  the  liberty 
of  an  individual  or  of  the  press,  but  the  right  of  every  litigant 
to  have  his  case  heard  free  from  baneful  external  influences 
sought  to  be  exerted  from  selfish  or  other  improper  motives. 
It  is  injecting  into  the  case  a  harmful  and  disturbing  element 
to  the  prejudice  of  the  rights  of  the  litigants,  and  inconsistent 
with  the  due  and  orderly  administration  of  justice." 

The  Constitution  provides :  "Every  person  may  freely 
speak,  write  and  publish  on  all  subjects,  being  responsible  for 
the  abuse  of  the  liberty." 

NEW   HAMPSHIRE. 

The  Constitution  declares:  "The  liberty  of  the  press  is 
essential  to  the  security  of  freedom  in  a  State ;  it  ought,  there- 
fore, to  be  inviolably  preserved." 

Tenney's  Case,  23  N.  H.  162  (166).    (1851.)    Action  for 

187 


OBSCENE   LITERATURE   AND    CONSTITUTIONAL    LAW. 

contempt,  for  circulating  copies  of  a  bill  in  equity,  containing 
charges  against  parties  to  the  action. 

The  Court,  rinding  defendant  guilty,  said:  "Abusing 
parties  concerned  in  causes  before  the  court  of  chancery,  and 
prejudicing  mankind  before  the  cause  is  heard,  is  a  contempt. 
*  *  *  Anything  done  either  for  the  purpose  of  obstructing 
justice,  or  which  may  have  that  effect,  may  be  punished  as  a 
contempt  of  the  court  before  whom  the  proceedings  are  had." 

Sturoc's  Case,  48  N.  H.  428  (432).  (1869.)  Action  for 
contempt  for  reflecting  on  conduct  of  Court  in  a  pending  mat- 
ter. 

The  Court,  in  adjudging  the  respondent  guilty,  said :  "It 
must  not  be  inferred  that  we  question  the  right  to  criticize 
and  censure  the  conduct  of  courts  and  parties  when  causes 
have  been  finally  decided.  The  question  in  this  case  is  whether 
publications  can  be  permitted  which  have  a  tendency  to  preju- 
dice the  decisions  of  pending  causes.  The  publishers  of  news- 
papers have  the  right,  but  no  higher  than  others,  to  bring 
to  public  notice  the  conduct  of  courts  and  parties,  after  the 
decision  has  been  made ;  and,  provided  the  publications  are 
true,  and  fair  in  spirit,  there  is  no  law,  and  I  am  sure  there  is 
no  disposition,  to  restrain  or  punish  the  freest  expression  of 
the  disapprobation  that  any  person  may  entertain  of  what  is 
done  in  or  by  the  courts." 

NEW     JERSEY. 

The  Constitution  provides:  "Every  person  may  freely 
speak,  write  and  publish  his  sentiments  on  all  subjects,  being 
responsible  for  the  abuse  of  that  right.  No  law  shall  be 
passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the 
press." 

In  re  Cheeseman,  49  N.  J.  Law  115  (141,  142).  (1886.) 
Appeal  from  contempt  order  for  publication  of  articles  re- 
flecting on  Court  for  conviction  of  defendant.  Appeal  dis- 
missed. 

The  Court  said:  "The  importance  of  the  'liberty  of  the 
press'  is  urged  upon  us.  We  do  not  underestimate  it,  but,  after 
all,  the  liberty  of  the  press  is  only  the  liberty  which  every  man 
has  to  utter  his  sentiments,  and  can  be  enjoyed  only  in  sub- 
jection to  that  precept  both  of  law  and  of  morals:  sic  utere 
tuo,  ut  alienum  non  laedas.  In  a  government  where  order  is 
secured,  not  so  much  by  force  as  by  the  respect  which  citizens 

188 


. 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS. 

entertain  for  the  law  and  those  charged  with  its  administra- 
tion, nothing  which  tends  to  preserve  that  respect  from  for- 
feiture on  the  one  hand  and  detraction  on  the  other  can  be 
hostile  to  the  commonwealth. 

NEW  YORK. 

The  New  York  Constitution  (Art.  I,  Sec.  8)  declares  that 
"every  citizen  may  freely  speak,  write  and  publish  his  senti- 
ments on  all  subjects,  being  responsible  for  the  abuse  of  that 
right ;  and  no  law  shall  be  passed  to  restrain  or  abridge  the 
liberty  of  the  press." 

People  v.  Freer,  i  Caines  518.  (1804.)  Action  for  con- 
tempt for  comment  on  pending  action. 

The  Court  said:  "Publications  scandalizing  the  Court  or 
intending  unduly  to  influence,  or  overawe  their  deliberations, 
are  contempts  which  they  are  authorized  to  punish  by  attach- 
ment ;  and,  indeed,  it  is  essential  to  their  dignity  of  character, 
their  utility  and  independence,  that  they  should  possess  and 
exercise  this  authority." 

People  v.  Crosswell,  3  Johns.  Cos.  (N.  F.)>  337  (393)- 
(1804.)  Action  for  criminal  libel,  in  publishing  an  article 
which  accused  Thomas  Jefferson  of  hiring  a  pamphleteer  to 
caluminate  Washington  and  others. 

The  Court,  after  reviewing  the  constitutional  provisions 
for  free  speech  and  a  free  press,  said :  "I  am  far  from  intend- 
ing that  these  authorities  mean,  by  the  freedom  of  the  press,  a 
press  wholly  beyond  the  reach  of  the  law;  for  this  would  be 
emphatically  Pandora's  Box,  the  source  of  every  evil.  *  *  * 
The  founders  of  our  governments  were  too  wise  and  too  just, 
ever  to  have  intended,  by  the  freedom  of  the  press,  a  right  to 
circulate  falsehood  as  well  as  truth,  or  that  the  press  should  be 
a  lawful  vehicle  of  malicious  defamation,  or  an  engine  for  evil 
and  designing  men  to  cherish,  for  mischievous  purposes,  se- 
dition, ir religion  and  impurity.  Such  an  abuse  of  the  press 
would  be  incompatible  with  the  existence  and  good  order  of 
civil  society.  The  true  rule  of  law  is  that  the  intent  and  tend- 
ency of  the  publication  is,  in  every  instance,  to  be  the  substan- 
tial inquiry  on  the  trial,  and  that  the  truth  is  admissible  in  evi- 
dence to  explain  that  intent,  and  not  in  every  instance  to 
justify  it.  I  adopt  in  this  case,  as  perfectly  correct,  the  com- 
prehensive and  accurate  definition  of  one  of  the  counsel  at  the 
bar,  that  the  liberty  of  the  press  consists  in  the  right  to  pub- 

189 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

lish,  with  impunity,  truth,  with  good  motives  and  for  justifi- 
able ends,  whether  it  respects  government,  magistracy  or  in- 
dividuals." 

Brandreth  v.  Lance,  8  Paige  (N.  F.),  24  (26)  ;  34  Am. 
Dec.  368.  (1839.)  Action  for  an  injunction  against  the  pub- 
lication of  a  satirical  biography  of  plaintiff,  alleged  to  be 
libelous  in  its  nature. 

The  Court,  in  sustaining  a  demurrer,  said:  "It  is  very 
evident  that  this  Court  cannot  assume  jurisdiction  of  the  case 
presented  by  the  complainant's  bill,  or  any  other  case  of  the 
like  nature,  without  infringing  upon  the  liberty  of  the  press, 
and  attempting  to  exercise  a  power  of  prevention  which,  as 
the  legislature  has  decided,  cannot  safely  be  entrusted  to  any 
tribunal,  consistently  with  the  principles  of  a  free  govern- 
ment." 

N.  Y.  Juvenile  Guardian  Society  v.  Rosevelt,  7  Daly 
(N.  Y.)  188  (191).  (1877.)  Motion  to  vacate  an  injunction 
against  the  publication  of  alleged  libelous  matter. 

The  Court,  in  granting  the  motion,  on  the  authority  of 
Brandreth  v.  Lance,  8  Paige  24,  further  said:  "Conceding 
*  *  *  that  the  matter  thus  published  is  defamatory  and 
libelous,  as  averred,  the  publication  cannot  be  restrained  by  a 
court  of  equity;  and  those  injured  by  such  publications,  if 
they  are  libelous,  must  seek  their  remedy  by  a  civil  action,  or 
by  an  indictment  in  the  criminal  courts;  there  being  no  au- 
thority in  this  court,  as  a  court  of  equity,  to  restrain  any  such 
publication ;  the  exercise  of  any  such  jurisdiction  being  re- 
pugnant to  the  provision  of  the  Constitution,  which  declares 
(Art  i,  p.  8)  that  every  citizen  may  freely  speak,  write  and 
publish  his  sentiments  on  all  subjects,  being  responsible  for 
the  abuse  of  that  right;  and  that  no  law  shall  be  passed  to 
restrain  or  abridge  the  liberty  of  speech  or  of  the  press." 

Hart  v.  People,  26  Hun  (N.  Y.)  396  (400).  (1882.) 
The  defendants  were  indicted  for  publishing  an  advertisement 
of  the  Louisiana  lottery.  Lotteries  are  forbidden  by  the  Con- 
stitution of  N.  Y. 

The  Court,  in  overruling  a  demurrer  to  the  indictment, 
said :  "An  act  of  the  legislature  to  prevent  the  press  from  dis- 
cussing the  legality  or  propriety  of  lotteries,  or  from  exposing 
their  existence  as  violations  of  law,  and  calling  the  attention  of 
the  public  authorities  to  them,  or  criticising  the  acts  or  neglect 
of  public  officials  in  regard  to  enforcing  the  laws  against  them, 

TOO 


JUDICIAL    DOGMATISM    ON       FREEDOM    OF    THE    PRESS/ 

would  be  violations  of  constitutional  rights  and  liberties  of  the 
press.  But  it  is  a  very  different  thing  to  prohibit  the  publica- 
tion of  accounts,  or  notices  or  advertisements  which  are  de- 
signed to  aid  and  assist  in  the  promotion  of  lotteries,  by  in- 
forming persons  desirous  of  engaging  in  such  lotteries  where 
they  are  to  be  drawn,  what  are  the  prizes  therein,  what  are  the 
prices  of  tickets  or  shares,  and  where  tickets  may  be  obtained, 
or  otherwise  aiding  and  assisting  the  unlawful  act  of  maintain- 
ing and  carrying  on  such  violations  of  the  statute. 

"Since  lotteries  are  regarded  as  public  evils,  in  their  na- 
ture, so  injurious  as  to  require  express  constitutional  prohibi- 
tion, there  can  hardly  seem  to  be  a  doubt  that  laws  in  aid  and 
execution  of  the  provisions  of  the  Constitution  cannot  prop- 
erly be  pronounced  by  the  courts  repugnant  thereto  and  there- 
fore void." 

People  v.  Most,  75  N.  Y.  Supp.  591  (592,  593)  ;  71  App. 
Div,  160.  (1902.)  Appeal  from  conviction  of  a  misdemeanor 
in  "seriously  endangering  the  public  peace/'  by  the  publication 
of  an  article  justifying  violence  against  rulers. 

The  Court,  in  affirming  the  conviction,  referring  to  the 
constitutional  guarantee  of  free  speech,  said :  "But  the  pro- 
vision of  the  constitution  referred  to  (Art.  I,  Sec.  8)  mani- 
festly does  not  give  to  a  citizen  the  right  to  murder,  nor  does 
it  give  him  the  right  to  advise  the  commission  of  that  crime 
by  others.  What  it  does  permit  is  liberty  of  action  only  to  the 
extent  that  such  liberty  does  not  interfere  with  or  deprive 
others  of  an  equal  right.  In  the  eye  of  the  law,  each  citizen 
has  an  equal  right  to  live,  to  act,  and  to  enjoy  the  benefits  of 
the  laws  of  the  state  under  which  he  lives.  But  no  one  has 
the  right  to  use  the  privileges  thus  conferred  in  such  a  way  as 
to  injure  his  fellow-citizens ;  and  one  who  imagines  that  he  has 
labors  under  a  serious  misconception  not  only  of  the  true  mean- 
ing of  the  constitutional  provision  referred  to,  but  of  his  duty 
and  obligations  to  his  fellow-citizens  and  to  the  state  itself." 

People  v.  Most,  171  N.  Y.  423  (431,  432)  ;  64  N.  E.  175 
(178)  ;  58  L.  R.  A.  309.  (1902.)  Appeal  from  affirmance  of 
conviction  for  publication  of  alleged  seditious  publications. 
(See  75  N.  Y.  Supp.  591.) 

The  Court  affirmed  the  conviction,  and  in  discussing  the 
constitutional  guarantee  said:  "While  the  right  to  publish  is 
thus  sanctioned  and  secured,  the  abuse  of  that  right  is  ex- 

191 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

cepted  from  the  protection  of  the  Constitution;  and  authority 
to  provide  for  and  punish  such  abuse  is  left  to  the  legislature. 
The  punishment  of  those  who  publish  articles  which  tend  to 
corrupt  morals,  induce  crime  or  destroy  society,  is  essential 
to  the  security  of  freedom  and  the  stability  of  the  state.  While 
all  the  agencies  of  government,  executive,  legislative  and  ju- 
dicial, cannot  abridge  the  freedom  of  the  press,  the  legislature 
may  control  and  the  courts  may  punish  the  licentiousness  of 
the  press.  "The  liberty  of  the  press,"  as  Chancellor  Kent  de- 
clared in  a  celebrated  case,  "consists  in  the  right  to  publish, 
with  impunity,  truth,  with  good  motives,  and  for  justifiable 
ends ;  whether  it  respects  governments,  magistracy  or  indi- 
viduals" (People  v.  Crosswell,  3  Johns.  Cas.  336,  393).  Mr. 
Justice  Story  defined  the  phrase  to  mean  "that  every  man  shall 
have  a  right  to  speak,  write  and  print  his  opinions  upon  any 
subject  whatsoever,  without  any  prior  restraint,  so  always, 
that  he  does  not  injure  any  other  person  in  his  rights,  person, 
property  or  reputation ;  and  so  always,  that  he  does  not 
thereby  disturb  the  public  peace,  or  attempt  to  subvert  the 
government"  (Story's  Commentaries  on  the  Constitution,  p. 
1874). 

"The  Constitution  does  not  protect  a  publisher  from  the 
consequence  of  a  crime  committed  by  the  act  of  publication. 
It  does  not  shield  a  printed  attack  on  private  character;  for 
the  same  section  from  which  the  above  quotation  is  taken  ex- 
pressly sanctions  criminal  prosecution  for  libel.  It  does  not 
permit  the  advertisement  of  lotteries,  for  the  next  section  pro- 
hibits lotteries  and  the  sale  of  lottery  tickets.  It  does  not  per- 
mit the  publication  of  blasphemous  or  obscene  articles,  as  the 
authorities  uniformly  hold.  It  places  no  restraint  upon  the 
power  of  the  legislature  to  punish  the  publication  of  matter 
which  is  injurious  to  society  according  to  the  standard  of  the 
common  law.  It  does  not  deprive  the  state  of  the  primary 
right  of  self  preservation.  It  does  not  sanction  unbridled 
license  nor  authorize  the  publication  of  articles  prompting  the 
commission  of  murder  or  overthrow  of  government  by  force. 
All  courts  and  commentators  contrast  the  liberty  of  the  press 
with  its  licentiousness,  and  condemn,  as  not  sanctioned  by  the 
constitution  of  any  state,  appeals  designed  to  destroy  the 
reputation  of  the  citizen,  the  peace  of  society  or  the  existence 
of  the  government." 


192 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE    PRESS/' 

Stuart  v.  Press  Pub.  Co.,  82  N.  Y.  Supp.  401  (408)  ;  83 
App.  Div.  467  (1903.)  Action  for  libel. 

The  Court  said:  "Liberty  of  speech  and  of  the  press  is 
guaranteed  by  the  supreme  law  of  the  land,  and  will  be  zeal- 
ously guarded,  preserved  and  enforced  by  the  courts.  The 
provisions  of  the  Federal  and  State  Constitutions  were  de- 
signed to  secure  rights  of  the  people  and  of  the  press  for  the 
public  good;  and  they  do  not  license  the  utterance  of  false, 
slanderous  or  libelous  matter.  Individuals  are  free  to  talk, 
and  the  press  is  at  liberty  to  publish,  and  neither  may  be  re- 
strained by  injunction ;  but  they  are  answerable  for  the  abuse 
of  this  privilege,  in  an  action  for  slander  or  libel  under  the 
common  law,  except  where  by  that  law,  or  by  statute  enacted 
in  the  interest  of  the  public  policy,  the  publication  is  privi- 
leged and  deemed  for  the  general  good,  even  though  it  works 
a  private  injury." 

OHIO. 

The  Constitution  (Art.  I,  Sec.  n)  provides:  "Every  citizen 
may  freely  speak,  write  and  publish  his  sentiments  on  all  sub- 
jects, being  responsible  for  the  abuse  of  the  right ;  and  no  law 
shall  be  passed  to  restrain  or  abridge  the  liberty  of  speech,  or 
of  the  press." 

Dopp  v.  Dollr  13  Weekly  Law  Bull.  (Ohio),  335.  (1885.) 
Action  for  injunction  against  anticipated  libel. 

Injunction  refused  as  incompatible  with  constitutional 
liberty  of  the  press.  Nothing  specially  quotable. 

Myers  v.  State,  21  Weekly  Law  Bull.  (Ohio),  404. 
(1889.)  Contempt  proceeding  for  publishing  reflections  on 
court.  Defendant  found  guilty.  Nothing  specially  quotable. 

In  re  Press-Post,  3  Ohio  N.  P.  180.  (1896.)  Contempt 
proceedings  for  publishing  articles  about  case  on  trial.  Dis- 
missed with  admonition. 

The  Court  said :  "The  abuses  of  the  freedom  of  the  press 
are  not  as  dangerous  as  its  suppression  would  be.  The  press  is 
a  necessary,  important  and  valuable  institution  in  imparting 
information  with  respect  to  the  conduct  of  every  department 
of  government — the  judiciary  as  well  as  the  legislative  and 
executive  authorities — information  to  which  the  people  are 
entitled ;  but  the  preservation  of  the  rights  of  persons  who  are 
accused  of  crime  to  a  fair  and  impartial  trial  is  just  as  essential 
and  important  in  our  democratic  system  of  government." 


193 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 
OKLAHOMA  TERRITORY. 

Burke  v.  Ter.  of  Oklahoma,  2  Okla.  499  (522).  (1894.) 
Action  for  contempt  for  article  offensive  to  judge. 

The  Court  said:  "We  decline  in  this  case  to  give  char- 
acter to  a  manufactured  sentiment  by  joining  the  too  often 
repeated  discussion  of  a  perverted  application  of  our  benefi- 
cent heritage  of  freedom  of  speech  and  liberty  of  the  press. 
During  these  occasions,  when  crime  stalks  abroad  cloaked  in 
the  garb  of  liberty,  and  when  the  assassin  of  our  highest  and 
noblest  institutions  of  civil  government  would  audaciously  bid 
the  hand  of  justice  bestow  reward  for  punishment  too  long  de- 
served, we  are  reminded  of  the  historic  words  of  Madame 
Roland,  'Ah,  Liberty,  how  many  crimes  are  committed  in  thy 
name !'  and  resolve  that  the  shield  of  the  innocent  shall  not  be 
the  weapon  of  the  guilty." 

OREGON. 

The  Constitution  provides  that  "no  law  shall  be  passed 
restraining  the  free  expression  of  opinion,  or  restricting  the 
right  to  speak,  write  or  print  freely  on  any  subject  whatever; 
but  every  person  shall  be  responsible  for  the  abuse  of  the 
right/' 

Upton  v.  Hume,  24  Ore.  420  (432).  (1893.)  Action  for 
libel. 

The  Court  said :  "The  term  'freedom  of  the  press/  which 
is  guaranteed  under  the  Constitution,  has  led  some  to  suppose 
that  the  proprietors  of  newspapers  have  a  right  to  publish  with 
impunity  charges  for  which  others  would  be  held  responsible. 
This  is  a  mistake;  the  publisher  of  a  newspaper  possesses  no 
immunity  from  liability  on  account  of  a  libelous  publication, 
not  belonging  to  any  other  citizen.  In  either  case  the  publisher 
is  subject  to  the  law  of  the  land ;  and,  when  the  publication  is 
a  false  and  defamatory  one,  he  must  answer  in  damages  to  the 
injured  party/' 

PENNSYLVANIA. 

The  Constitution  provides:  "The  free  communication  of 
thoughts  and  opinions  is  one  of  the  invaluable  rights  of  man, 
and  every  citizen  may  freely  speak,  write  and  print  on  any 
subject,  being  responsible  for  the  abuse  of  that  liberty."  There 
is  much  additional  matter  seeking  specially  to  protect  freedom 
for  the  discussion  of  public  officials.  The  Pennsylvania  de- 
cisions nearly  all  relate  only  to  the  effect  of  these  other  pro- 


194 


JUDICIAL    DOGMATISM    ON 

visions  upon  actions  for  personal  libel,  and  not  to  the  general 
clause  above  quoted. 

Republica  v.  Passmore,  3  Yeates  (Pa.),  441  (442). 
(1802.)  Action  for  contempt  for  publishing  an  article  re- 
flecting on  a  party  to  a  pending  action. 

The  Court  said:  "However  libelous  the  publication  com- 
plained of  may  be,  we  have  no  cognizance  of  it  in  this  sum- 
mary mode,  unless  it  be  a  contempt  of  the  court.  But  we  are 
unanimously  of  opinion  that  in  point  of  law  it  is  such  a  con- 
tempt. *  *  *  If  the  minds  of  the  public  can  be  prejudiced 
by  such  improper  publications,  before  a  cause  is  heard,  justice 
cannot  be  administered." 

TEXAS. 

The  Texas  Bill  of  Rights  provides  (Sec.  8)  that  "every 
person  shall  be  at  liberty  to  speak,  write  or  publish  his  opinions 
on  any  subject,  being  responsible  for  the  abuse  of  that  privilege ; 
and  no  law  shall  ever  be  passed  curtailing  the  liberty  of  speech 
or  of  the  press." 

Ex  Parte  Neill,  32  Tex.  Crim.  275  (276,  277).  (1889.) 
Appeal  from  denial  of  a  writ  of  habeas  corpus.  The  appellant 
had  been  arrested  for  selling  a  certain  paper,  contrary  to  the 
provisions  of  a  municipal  ordinance,  which  adjudged  said 
paper  a  public  nuisance,  and  prohibited  its  sale. 

The  Court,  in  pronouncing  the  ordinance  unconstitutional 
and  void,  and  discharging  the  relator,  said:  "The  power  to 
prohibit  the  publication  of  newspapers  is  not  within  the  com- 
pass of  legislative  action  in  this  State ;  and  any  law  enacted 
for  that  purpose  would  clearly  be  in  derogation  of  the  Bill  of 
Rights.  *  *  * 

"To  prevent  the  abuse  of  this  privilege  as  affecting  the 
public,  the  legislature  has  prescribed  penalties  to  be  enforced 
at  the  suit  of  the  State,  leaving  the  matter  of  private  injuries 
to  be  determined  between  the  parties  in  civil  proceedings. 

"We  are  not  informed  of  any  authority  which  sustains 
the  doctrine  that  a  municipal  corporation  is  invested  with  the 
power  to  declare  the  sale  of  newspapers  a  nuisance.  The 
power  to  suppress  one  concedes  the  power  to  suppress  all, 
whether  such  publications  are  political,  secular,  religious,  de- 
cent or  indecent,  obscene  or  otherwise.  The  doctrine  of  the 
Constitution  must  prevail  in  this  State,  which  clothes  the  citi- 
zen with  the  liberty  to  speak,  write  or  publish  his  opinion  on 


195 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

any  and  all  subjects,  subject  alone  to  responsibility  for    the 
abuse  of  such  privilege." 

WASHINGTON. 

The  Constitution  provides :  "Every  person  may  freely 
speak,  write  and  publish  on  all  subjects,  being  responsible  for 
the  abuse  of  that  right." 

State  v.  Tugwell,  19  Wash.  238  (253,  256).  (1898.) 
The  Court  said :  The  constitutional  liberty  of  speech  and 
the  press  and  the  guarantees  against  its  abridgment,  *  *  *' 
undoubtedly  primarily  grew  out  of  the  censorship  of  articles  in- 
tended for  publication  by  public  authority.  Such  censorship 
was  inconsistent  with  free  institutions  and  with  that  free  dis- 
cussion of  all  public  officers  and  agents  required  for  the  intelli- 
gent exercise  of  the  right  of  suffrage.  *  *  *  If  the  article  is 
calculated  to  embarrass  or  influence  a  court  to  prevent  a  fair 
trial  between  suitors  in  court  either  by  disturbing  the  inde- 
pendent verdict  of  the  jury  or  the  independent  and  unbiased 
conclusion  of  the  court,  it  is  contempt.  *  *  *  The  right  of 
suitors  in  court  and  persons  charged  with  offenses  to  a  fair 
trial  is  guaranteed  by  our  fundamental  law.  *  *  *  It  is  this 
right  of  impartial  trial  which  is  violated  by  the  publication  and 
submission  of  an  article  to  the  Court,  while  a  cause  is  pending 
and  yet  undetermined,  tending  to  embarrass  or  influence  the 
court  in  its  final  conclusion;  and  the  individual  liberty  of  the 
citizen  is  gone  when  his  personal  rights  are  endangered  or  lost 
by  such  extraneous  influences.  It  is  this  protection  of  the 
rights  of  suitors  in  a  judicial  action,  which  compels  the  courts 
to  exercise  their  jurisdiction  of  contempt.  *  *  *  In  such  con- 
clusion, it  is  not  intended  to  intimate  or  suggest  that  any  citi- 
zen of  the  state  has  not  a  legal  right  to  comment  upon,  criti- 
cise and  freely  and  without  restriction  from  any  lawful  au- 
thority discuss  any  case  determined  by  any  of  the  courts  of  this 
State  after  the  final  disposition  of  such  case;  or  that  any  re- 
striction of  fair  and  impartial  reporting  of  cases  pending  in 
courts,  unless  forbidden  by  rule,  is  now  imposed  by  our 
Laws." 

WEST   VIRGINIA. 

The  Constitution  provides:  "No  law  abridging  the  free- 
dom of  speech,  or  of  the  press,  shall  be  passed ;  but  the  legis- 
lature may  by  suitable  penalties  restrain  the  publication  or 
sale  of  obscene  books,  papers  or  pictures,  and  provide  for  the 

196 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE   PRESS/' 

punishment  of  libel,  and  defamation  of  character,  and  for  the 
recovery  in  civil  actions,  by  the  aggrieved  party,  of  suitable 
damages  for  such  libel,  or  defamation." 

Sweeny  v.  Baker,  13  W.  Va.  158  (182).  (1878.)  Action 
for  libel. 

The  Court  said:  "The  terms  'freedom  of  the  press'  and 
'liberty  of  the  press'  have  misled  some  to  suppose  that  the  pro- 
prietors of  a  newspaper  had  a  right  to  publish  that  with  im- 
punity, for  the  publication  of  which  others  would  have  been 
held  responsible.  But  the  proper  signification  of  these  phrases 
is,  if  so  understood,  misapprehended.  The  'liberty  of  the 
press'  consists  in  a  right,  in  the  conductor  of  a  newspaper,  to 
print  whatever  he  chooses  without  any  previous  license,  but 
subject  to  be  held  responsible  therefor  to  exactly  the  same 
extent,  that  any  one  else  should  be  responsible  for  the  publi- 
cation." 

State  v.  Frew,  24  W.  Va.  416  (466,  478)  :  (1884.)  :  Con- 
tempt for  proceeding  for  publication  of  an  article  charged 
with  being  calculated  to  impugn  the  integrity  of  members  of 
the  Court. 

Constitutional  guarantee  not  directly  discussed. 

The  Court  said:  "In  every  respect  of  the  case,  the  publi- 
cation is  clearly  contempt  of  this  Court.  Can  such  a  publi- 
cation be  palliated  or  excused?  Far  be  it  from  us  to  lake 
away  the  liberty  of  the  press,  or  in  the  slightest  degree  to 
interfere  with  its  rights.  The  good  of  society  and  of  govern- 
ment demands  that  the  largest  liberty  should  be  accorded 
the  press,  which  is  a  power  and  an  engine  of  great  good ;  but 
the  press  itself  will  not  for  a  moment  tolerate  such  licentious- 
ness as  is  exhibited  in  said  editorial.  The  press  is  interested 
in  the  purity  of  the  courts;  and  if  it  had  no  respect  for  the 
judges  on  the  bench,  it  should  respect  the  Court;  for  when 
the  judges  now  on  the  bench  shall  be  remembered  only  in  the 
decision  they  have  rendered,  the  Court  will  still  remain;  it 
never  dies ;  it  is  the  people's  Court ;  and  the  press  as  the 
champion  of  the  people's  rights  is  interested  in  preserving 
the  respect  due  to  the  Court." 

Snyder,  J.,  concurring,  said:  "It  must  be  and  is  cheer- 
fully conceded  that  public  journals  have  the  right  to  criticize 
freely  the  acts  of  all  public  officers — executive,  legislative  and 
judicial.  It  is  a  constitutional  privilege  that  even  the  Legis- 


197 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

lature  cannot  abridge.  But  such  criticism  should  always  be 
just  and  with  a  view  to  promote  the  public  good.  Where  the 
conduct  of  a  public  officer  is  wilfully  corrupt,  no  measure  of 
condemnation  can  be  too  severe;  but  when  the  misconduct, 
apparent  or  real,  may  be  simply  an  honest  error  of  judgment, 
the  condemnation  ought  to  be  with-held  or  mingled  with 
charity.  As  said  by  Holt  in  his  work  on  Libel,  chap.  9,  'It 
is  undoubtedly  within  the  natural  compass  of  the  liberty  of 
the  press,  to  discuss  in  a  decent  and  temperate  manner  the 
decisions  and  judgments  of  a  court  of  justice;  to  suggest 
even  errors ;  and,  provided  it  is  done  in  tne  language  and  with 
the  views  of  fair  criticism,  to  censure  what  is  apparently 
wrong;  but  with  this  limitation,  that  no  false  or  dishonest 
motives  be  assigned  to  any  party.'  These  views  are,  in  my 
judgment,  sound;  and  these  rights  should  be  cheerfully  ac- 
corded to  the  press  in  this  free  and  enlightened  country." 

WISCONSIN. 

The  Constitution  provides;  "Every  person  may  freely 
speak,  write  and  publish  his  sentiments  on  all  subjects,  being 
responsible  for  the  abuse  of  that  right;  and  no  laws  shall  be 
passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the 
press." 

State  ex  rel.  Attorney  Gen.  v.  Cir.  Ct.  for  Eau  Claire 
Co.,  97  Wis.  i  (12,  13).  (1897.)  Action  of  prohibition  to 
check  contempt  proceedings  for  publication  severely  criticising 
the  conduct  on  the  bench  of  a  judge,  who  was  at  the  time  a 
candidate  for  re-election.  Peremptory  writ  granted. 

The  Court  said:  "Important  as  it  is  that  courts  should 
perform  their  grave  public  duties  unimpeded  and  unprej- 
udiced by  illegitimate  influences,  there  are  other  rights  guar- 
anteed to  all  citizens  by  our  constitution  and  form  of  govern- 
ment, either  expressly  or  impliedly,  which  are  fully  as  im- 
portant, and  which  must  be  guarded  with  an  equally  jealous 
care.  These  rights  are  the  right  of  free  speech  and  of  free 
publication  of  the  citizen's  sentiments  'on  all  subjects'  *  *  * 
also  the  right  to  freely  discuss  the  merits  and  qualifications 
of  a  candidate  for  public  office,  being  responsible  for  the 
abuse  of  such  right  in  a  proper  action  at  law.  *  *  *  Truly,  it 
must  be  a  grievous  and  weighty  necessity  which  will  justify 
so  arbitrary  a  proceeding,  whereby  a  candidate  for  office 
becomes  the  accuser,  judge  and  jury,  and  may  within  a  few 

198 


JUDICIAL    DOGMATISM    ON 

hours  summarily  punish  his  critic  with  imprisonment.  The 
result  of  such  a  doctrine  is  that  all  unfavorable  criticism  of 
a  sitting  judge's  past  official  action  can  be  at  once  stopped 
by  the  judge  himself,  or,  if  not  stopped,  can  be  punished  by 
immediate  imprisonment.  If  there  can  be  any  more  effectual 
way  to  gag  the  press  and  subvert  freedom  of  speech,  we  do 
not  know  where  to  find  it.  *  *  *  We,  however,  adopted  no 
part  of  the  common  law  which  was  inconsistent  with  our 
constitution ;  and  it  seems  clear  to  us  that  so  extreme  a  power 
is  inconsistent  with,  and  would  materially  impair,  the  consti- 
tutional rights  of  free  speech  and  free  press." 

INFERIOR   U.    S.   COURTS. 

U.  S.  v.  Hall,  26  Fed.  Cas.  No.  15,  282.  (1871.)  On 
demurrer  to  Indictment  for  conspiracy  to  intimidate  and  pre- 
vent free  speech.  Demurrer  overruled. 

The  Court,  in  an  elaborate  argument,  held  that  by  the 
Fourteenth  Amendment  to  the  Constitution  of  the  United 
States,  the  federal  government  assumed  authority,  as  above 
the  states,  to  safeguard  the  fundamental  rights  of  the  citizen, 
including  that  of  free  speech,  and  was  bound  to  interfere, 
in  case  of  State  legislation  hostile  to  these  rights,  or  failure 
of  the  State  properly  to  secure  them. 

U.  S.  v.  Huggett,  40  Fed  Rep.  636  (638,  639).  (1889.)^ 
Demurrer  to  indictment  for  mailing  sealed  letters  containing 
obscene  matter,  prior  to  the  passage  of  the  statute  including 
them. 

The  Court,  sustaining  the  demurrer,  said:  "But  I  am  of 
the  opinion  that  the  adjudications  which  have  affirmed  the 
validity  of  the  indictments  do  fall  into  the  very  latitude  of 
construction  which  was  condemned  by  the  Supreme  Court 
of  the  United  States  in  the  above  cited  cases;  and  that  upon 
the  somewhat  gratuitous  assumption  that  Congress  intended 
to  purge  the  mails  of  all  impurity  whatever  *  *  *  I  say  upon 
a  gratuitous  assumption,  because  the  history  of  the  legislation 
shows  quite  clearly,  it  seems  to  me,  that,  until  the  recent 
acts  of  Congress,  that  body  has  never  come  up  to  the  elevated 
plane  of  moral  action  suggested  by  these  decisions,  and  to  be 
implied  from  putting  this  restriction  upon  the  absolute  free- 
dom of  that  form  of  correspondence,  but  has  especially  re- 
fused to  do  that  thing  *  *  *  And  this  reluctance  to  interfere 
with  the  freedom  of  private  correspondence  is  readily  ex- 

199 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

plainable  by  the  suggestion  of  Mr.  Justice  Field  that  Congress 
felt  the  difficulty  of  accomplishing  its  purpose  to  protect  the 
morals  of  the  people  by  a  wise  use  of  its  power  over  the  postal 
establishment,  'consistently  with  rights  reserved  to  the  people, 
of  far  greater  importance  than  the  transportation  of  the  mail.' 
Ex.  parte  Jackson,  96  U.  S.  727,  732.  Free  speech,  and  particu- 
larly free  speech  in  private  intercourse,  and  the  aversion  of 
our  race  of  freemen  to  interfere  with  it,  stood  somewhat  in 
the  way  of  this  legislation ;  at  least  in  the  popular  estimation. 
*  *  *Postal  officials  are  not  supposed  to  examine  or  to 
appropriate  to  themselves  the  indulgence  of  reading  that  which 
goes  into  the  mails  in  any  form,  but  their  duty  is  to  handle 
and  distribute  it  without  doing  that.  They  violate  their  duty 
when  they  so  use  any  mail  matter  whatsoever,  except  for  the 
purpose  of  such  official  inspection  as  may  be  authorized." 

U.  S.  Harman,  45  Fed.  Rep.  414  (415,  416).  (1891.) 
Indictment  for  mailing  alleged  obscene  publication.  The 
Court  said :  "In  view,  however,  of  the  fact  that  the  defendant 
places  so  much  stress  along  the  line  of  his  entire  defense  on 
the  liberty  which  should  be  accorded  to  the  press,  it  may  as 
well  be  said  here  as  elsewhere  that  it  is  a  radical  misconcep- 
tion of  the  scope  of  the  constitutional  protection  to  indulge 
the  belief  that  a  person  may  print  and  publish,  ad  libitum,  any 
matter,  whatever  the  substance  or  language,  without  account- 
ability to  law.  Liberty,  in  all  its  forms  and  assertions  in 
this  country,  is  regulated  by  law.  It  is  not  an  unbridled  li- 
cense. Where  vituperation  or  licentiousness  begins,  the  liberty 
of  the  press  ends  *  *  *  While  happily  we  have  outlived  the 
epoch  of  censors  and  licensers  of  the  press,  to  whom  the  pub- 
lisher must  submit  his  matter  in  advance,  responsibility  yet 
attaches  to  him  when  he  transcends  the  boundary  line  where 
he  outrages  the  common  sense  of  decency,  or  endangers  the 
public  safety  *  *  *  In  a  government  of  law,  the  law-making 
power  must  be  recognized  as  the  proper  authority  to  define 
the  boundary  line  between  license  and  licentiousness;  and  it 
must  likewise  remain  the  province  of  the  jury — the  consti- 
tutional triers  of  the  fact — to  determine  when  that  boundary 
line  has  been  crossed." 

Thomas  v.  Cinn,  etc.,  Ry.  Co.,  62  Fed.  Rep.  803  (822). 
(1894.)  Contempt  proceeding  against  labor  leader  for  violat- 
ing injunction. 


200 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OP    THE    PRESS/' 

The  Court  said:  "Something  has  been  said  about  the 
right  of  assembly  and  free  speech  secured  by  the  constitution 
of  Ohio.  It  would  be  strange,  if  that  right  could  be  used 
to  sustain  the  carrying  out  of  such  an  unlawful  and  criminal 
conspiracy  as  we  have  seen  this  to  be.  It  never  has  been 
supposed  to  protect  one  from  prosecution  or  suits  for  slander, 
or  for  any  of  the  many  malicious  and  tortious  injuries  which 
the  agency  of  the  tongue  has  been  so  often  employed  to  in- 
flict. If  the  obstruction  to  the  operation  of  the  road  by  the 
receiver  was  unlawful  and  malicious,  it  is  not  less  a  contempt 
because  the  instrument  which  he  used  to  effect  it  was  his 
tongue,  rather  than  his  hand." 

U.  S.  SUPREME  COURT. 

Respublica  v.  Oswald,  i  Dall.  (U.  S.)  319  (325,  326). 
(1788.)  Action  for  contempt  for  publishing  comment  on 
pending  action. 

The  Court  said:  "However  ingenuity  may  torture  the 
expressions,  there  can  be  little  doubt  of  the  just  sense  of  these 
sections  (the  constitutional  guarantee  of  free  speech  and  free 
press)  :  They  give  to  every  citizen  a  right  of  investigating  the 
conduct  of  those  who  are  entrusted  with  the  public  business; 
and  they  effectually  preclude  any  attempt  to  fetter  the  press 
by  the  institution  of  license  *  *  *  The  true  liberty  of  the 
press  is  amply  secured  by  permitting  every  man  to  publish 
his  opinions ;  but  it  is  due  to  the  peace  and  dignity  of  society 
to  inquire  into  the  motives  of  such  publications,  and  to  distin- 
guish between  those  which  are  meant  for  use  and  reformation, 
and  with  an  eye  solely  to  the  public  good,  and  those  which 
are  intended  merely  to  delude  and  defame.  To  the  latter  de- 
scription, it  is  impossible  that  any  good  government  should 
afford  protection  and  impunity. 

"If  then,  the  liberty  of  the  press  is  regulated  by  any  just 
principle,  there  can  be  little  doubt  that  he  who  attempts  to 
raise  a  prejudice  against  his  antagonist  in  the  minds  of  those 
that  must  ultimately  determine  the  dispute  beween  them ;  who, 
for  that  purpose,  represents  himself  as  a  persecuted  man,  and 
asserts  that  his  judges  are  influenced  by  passion  and  prejudice 
— wilfully  seeks  to  corrupt  the  source,  and  to  dishonor  the 
administration  of  justice." 

Ex  parte  Jackson,  96  U.  S.  727  (736).  (1877.)  Indict- 
ment for  mailing  lottery  circular.  Habeas  corpus  proceeding. 

20 1 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

The  Court,  denying  the  writ,  said:  "In  excluding 
articles  from  the  mail,  the  object  of  Congress  has  not  been  to 
interfere  with  the  freedom  of  the  press  or  with  any  other 
rights  of  the  people ;  but  to  refuse  its  facilities  for  the  distri- 
bution of  matter  deemed  injurious  to  the  public  morals."  The 
Court,  however,  distinctly  and  forcibly  held  that  Congress 
had  no  authority  to  prohibit  the  transportation  of  such  articles 
in  any  other  way  than  through  the  mails. 

In  Re  Rapier,  143  U.  S.  no  (134,  135).  (1892.)  Indict- 
ment for  mailing  lottery  advertisement. 

The  Court  said:  "We  cannot  regard  the  right  to  operate 
a  lottery  as  a  fundamental  right  infringed  by  the  legislation 
in  question ;  nor  are  we  able  to  see  that  Congress  can  be 
held,  in  its  enactment,  to  have  abridged  the  freedom  of  the 
press.  The  circulation  of  newspapers  is  not  prohibited ;  but 
the  government  declines  itself  to  become  an  agent  in  the 
circulation  of  printed  matter  which  it  regards  as  injurious 
to  the  people.  The  freedom  of  communication  is  not  abridged 
within  the  intent  and  meaning  of  the  constitutional  provision, 
unless  Congress  is  absolutely  destitute  of  any  discretion  as  to 
what  shall  or  shall  not  be  carried  in  the  mails,  and  compelled 
arbitrarily  to  assist  in  the  dissemination  of  matters  condemned 
by  its  judgment,  through  the  governmental  agencies  which  it 
controls.  That  power  may  be  abused  furnishes  no  ground 
for  a  denial  of  its  existence,  if  government  is  to  be  main- 
tained at  all." 

Patterson  v.  Colo.,  205  U.  S.  454  (462).  (1906.)  Writ  of 
error  in  contempt  proceeding.  Writ  dismissed  for  lack  of 
jurisdiction. 

The  Court  said:  "But  even  if  we  assume  that  freedom 
of  speech  and  freedom  of  the  press  were  protected  from 
abridgment  on  the  part  not  only  of  the  United  States  but 
also  of  the  States,  still  we  should  be  far  from  the  conclusion 
that  the  plaintiff  in  error  would  have  us  reach.  In  the  first 
place,  the  main  purpose  of  such  constitutional  provisions  is 
'to  prevent  all  such  previous  restraints  upon  publications  as 
had  been  practised  by  other  governments/  and  they  do  not 
prevent  the  subsequent  punishment  of  such  as  may  be  deemed 
contrary  to  the  public  welfare." 


202 


JUDICIAL    DOGMATISM    ON    "FREEDOM    OF    THE    PRESS/' 
CONCLUSION. 

Having  now  exhibited  the  judicial  cerebrations  upon  our 
constitutional  right  to  unabridged  freedom  of  speech  and  of  the 
press,  I  proceed  to  restate  what  is  claimed  to  be  proven  by  the 
exhibit.  No  matter  whether  the  result  of  the  opinion  was  to  up- 
hold or  to  abridge  the  freedom  of  the  press,  I  think  I  am  war- 
rented  in  making  the  following  assertion  as  applicable  to,  and 
true  of  every  opinion  published  upon  the  subject  of  freedom 
or  press. 

1.  In  no  case  did  the  court  derive  its  standard  for  deter- 
mining the  constitutionality  of  the  enactment  under  considera- 
tion by  critical  deductions  made   from  the  language  of  the 
constitutional  phase  involved.    If  that  was  too  ambiguous  the 
fact  should  have  been  stated,  and  the  historical  method  of 
interpretation  should  have  been  pursued. 

2.  In  no  case  did  the  court  arrive  at  its  standard  for 
determining  the  constitutional  meaning,  by  any  historical  study 
of  the  pre-revolutionary  controversies  over  freedom  of  utter- 
ance, to  discover  what  issues  our  constitutions  were  intended  to 
decide,  or  to  find  the  elements  of  unification  in  those  past  de- 
mands for  such  freedom,  which  common  element  of  all  strug- 
gles  against   abridgments,   varied   both   as   to   subject-matter 
and  methods  of  suppression,  would  inevitably  reveal  the  true 
essence  of  that  which  those  who  were  still  in  closer  touch 
with  these  struggles  than  we  can  be,  intended  to  protect  us 
against,  by  the  constitutional  phrase  in  question. 

3.  In-so-far  as  any  court  attempted  to  assign  reasons  for 
its  conclusions,  upon  either  side,  these  justifications  are  never 
drawn  from  the  constitutions,  but  are  a  mere  statement  of 
those  considerations  of  expediency  which  might  properly  and 
perhaps  effectively,  be  addressed  to  a  constitutional  convention, 
with  the  view  to  enlightening  them  as  to  what  a  constitution 
ought  to  contain  upon  this  subject,  but  certainly  not  very  in- 
forming as  to  what  a  constitution  already  in  existence  does  in 
fact  mean.     In  other  words,  constitutional  meanings  were  not 
deduced  from  that  instrument,  but  read  into  it,  and  instead  of 
having  government  according  to  Constitutional  Laws,  we  have 
government  according  to  the  arbitrary  and  despotic  will  of  a 
judiciary,  with  whom  a  Constitutionally  guaranteed  unabridg- 
able  right  to  utter  one's  sentiments,  means  the  right  to  utter 
only  that  which  the  courts  deem  advantageous  to  the  public 
welfare. 

203 


OBSCENE   LITERATURE    AND    CONSTITUTIONAL    LAW. 

4.  From  the  foregoing  propositions,  I  derive  this  last 
one.  In  every  case  wherein  our  constitutional  guarantees  for 
an  unabridged  right  of  utterance  were  involved,  the  alleged 
judicial  "interpretation"  expressed  only  the  judge's  emotional 
approval,  or  disapproval  of  the  right  to  utter  the  particular 
sentiments  then  before  him  for  judgment,  and  the  irrelevant 
reasons  assigned  by  him  were  deemed  cogent  only  because  they 
seemed  to  justify  his  prior  feeling-convictions.  If  I  am 
correct  in  this  little  psychologic  study  of  the  mental  processes 
of  our  judges,  then  of  course  they  are  hardly  entitled  to  much 
of  that  adoration  usually  accorded  only  to  those  possessed  of 
very  superior  intellectual  attainments. 

It  remains  to  be  seen  whether  we  are  able  to  lead  the 
way  to  a  better  method  of  constitutional  interpretation,  and 
make  the  initial  attempt  toward  a  rational  generalization, 
such  as  will  give  us  a  standard  of  judgment  for  the  determina- 
tion of  the  constitutionality  of  every  law  claimed  to  be  an 
abridgment  of  our  right  to  utter;  and  thus,  perhaps,  ultimately 
we  may  lead  the  courts  from  mistaking  their  dogmatism,  em- 
pirical inductions,  personal  emotions,  moral  sentimentalizing, 
judicial  interpolations  and  constitutional  amendment,  or  ques- 
tion-begging sophomoric  declamation,  for  constitutional  con- 
struction. 

When  I  read  the  exciting  grammar-school  oration  from  the 
Supreme  Court  of  Oklahoma ;  and  when  in  the  foregoing  opin- 
ions I  see  it  manifested  again  and  again,  that  the  judges  of 
the  highest  courts  of  our  land  evidently  do  not  know  the  differ- 
ence between  an  analogy  and  a  mere  figure  of  speech,  and 
because  of  that  ignorance  can  mis-use  the  former  as  a  basis  of 
constitutional  ''construction";  and  when  I  see  how  often 
"most  learned  judges"  are  stupid  enough  to  think  they  define 
the  limits  and  prescribe  the  criteria  of  constitutional  liberty  by 
the  use  of  such  meaningless  epithets  as  "license"  or  "licentious- 
ness"; and  when  I  see  "abuse"  of  freedom  founded  only  upon 
the  damaged  emotions  or  injured  vanity  of  judges  who  mis- 
conceive this  mere  psychologic  offense — this  mere  constructive 
abuse — to  be  very  real,  without  ever  having  even  thought  of 
the  possible  difference  between  it  and  an  actual  abuse  which  can 
only  be  predicated  upon  an  ascertained,  actual,  real  and  material 
injury;  and  when  I  contemplate  the  probable  fact  that  many 
readers  of  this  paragraph  will  not  know,  even  now,  just  what 
I  mean  by  these  criticisms,  because  I  cannot  take  space  to  an- 


'204 


JUDICIAL   DOGMATISM    ON    "FREEDOM    OF    THE    PRESS." 

alyze  each  opinion  and  specifically  point  out  its  shortcomings ; 
I  say  when  I  contemplate  all  these  things,  it  makes  me  inex- 
pressibly sad,  because  then  I  realize  how  slender  a  thread  of 
intelligence  sustains  our  liberties,  and  that  the  battle  for  real 
freedom  is  only  just  begun,  because  a  generally  accepted,  in- 
telligent conception  of  liberty,  such  as  must  precede  its  realiza- 
tion, for  a  long,  long  time  yet  will  be  impossible.  Will  the 
Federal  Supreme  Court  exercise  its  great  power  to  hasten  the 
day  of  our  liberation  ?  Ah !  there  is  a  flattering  hope,  which 
may  not  disappoint. 

The  doubt  which  the  courts  have  cast  upon  the  meaning 
of  "Freedom  of  Speech  and  of  the  Press"  by  declaring  limita- 
tions upon,  or  exceptions  to  that  freedom,  makes  it  imperative 
that  the  doubt  be  resolved  by  an  appeal  to  the  historical  inter- 
pretation of  that  constitutional  phrase.  Such  an  investigation 
will  disclose  to  us  whether  or  not  our  courts  are  warranted  in 
blindly  following,  as  they  have  done  more  or  less  directly,  the 
declarations  of  Blackstone,  Ellenborough,  Mansfield  or  even 
Erskine,  as  to  what  is  meant  by  freedom  of  the  press,  consti- 
tutionally guaranteed  as  an  unabridgable  right,  and  not  a 
mere  liberty  by  permission. 


205 


CHAPTER  XL 

THE  HISTORICAL  INTERPRETATION  OB 

"FREEDOM  OF  SPEECH  AND  OF 

THE  PRESS." 

The  purpose  is  to  re-interpret  our  constitutional  guarantee 
for  an  unabridged  freedom  of  speech  and  of  the  press,  by  the 
historical  or  scientific  method,  and  with  special  reference  to  the 
specific  issue  raised  by  the  judicial  dogmatism  thereon  and  my 
different  conception  of  how  that  phrase  ought  to  be  interpreted. 
To  clarify  the  issues,  I  restate  these  contradictory  propositions, 
so  the  reader  may  have  them  constantly  in  mind  during  the 
following  discussion. 

My  contention  as  to  the  meaning  of  a  constitutionally  guar- 
anteed right  to  unabridged  freedom  of  speech  and  of  the  press, 
is  this:  No  matter  upon  what  subject,  nor  how  injurious  to 
the  public  welfare  any  particular  idea  thereon  may  be  deemed 
to  be,  the  constitutional  right  is  violated  whenever  anyone  is 
not  legally  free  to  express  any  such  or  other  sentiments,  either ; 

First f  because  prevented  in  advance  by  a  legally  created 
censorship,  or  monopoly  in  the  use  of  the  press,  or  by  other 
governmental  power,  or ; 

Second,  because  in  the  effort  to  secure  publicity  for  any 
idea  whatever,  the  equality  of  natural  opportunity  is  destroyed, 
in  that  some,  by  subsequent  legal  penalties  or  other  legal  limi- 
tations, are  deterred,  or  are  impeded,  in  the  use  of  the  ordinary 
and  natural  methods  of  reaching  the  public,  on  the  same  legal 
terms,  as  these  are  permitted  to  any  person  for  the  presentation 
o>f  any  other  idea,  or ; 

Third,  because  the  natural  opportunity  of  all  is  abridged  by 
some  statutory  impediment,  such  as  taxes  upon  the  dissemina- 
tion of  information  placed  upon  all  intellectual  intercourse,  as 
such,  or  on  all  of  a  particular  class,  or; 

Fourth,  because  inequalities  in  State-created,  or  State- 
supported,  opportunity  is  legalized,  so  that,  in  the  effort  to 
secure  publicity  for  any  sentiments  and  merely  because  of  their 

206 


INTERPRETATION    OF      FREEDOM   OF  SPEECH   AND  OF  THE  PRESS. 

nature,  literary  style,  or  supposed  evil  tendency,  any  one  is 
discriminated  against,  either  by  law,  or  for  any  cause  by  any 
arbitrary  exercise  of  official  discretion,  in  the  use  of  such  State- 
created  or  State-supported  facilities,  or ; 

Fifth,  because  after  expressing  one's  sentiments  one  is  by 
law  liable  to  punishment,  merely  for  having  uttered  disap- 
proved thoughts ; 

Provided  always,  that  the  prohibition,  abridgment,  discrim- 
ination, subsequent  punishment,  or  other  legal  disability  or 
disadvantage,  is  arbitrarily  inflicted,  or  attaches  merely  because 
of  the  character,  literary  style,  or  supposed  bad  tendency  of 
the  offending  sentiments,  and  their  spread  among  sane  adults, 
willing  to  read,  see,  or  hear  them,  or  is  the  result  of  arbitrary 
official  discretion,  and  that  they  do  not  attach  because  of  any 
inseparably  accompanying,  or  other  resultant  penalized  invasive 
act,  constituting  an  actually  ascertained,  resultant,  material 
injury,  (as  distinguished  from  mere  speculative  or  constructive 
harm)  inflicted,  or  by  overt  act  attempted  to  be  inflicted,  before 
arrest  and  punishment,  and  in  either  case  actually  resulting 
from  the  particular  utterance  involved. 

But,  if  the  injury  is  to  reputation,  or  loss  of  public  esteem, 
and  among  the  consequences  is  material  injury  to  the  libeled 
person,  even  then,  truth  and  justifiable  motive  must  always  be 
recognized  by  law  as  a  complete  defense;  and  where  the 
resultant  injury  consists  in  violence  to  person  or  property, 
actually  attempted  or  achieved,  then  the  intent  to  achieve  such 
results  must  be  of  the  essence  of  the  crime,  and  punishment 
of  a  mere  speaker  must  be  only  that  of  an  accessory  before  the 
fact,  if  our  constitutional  guaranty  is  to  be  made  effective. 
I  do  not  discuss  civil  remedies. 

THE  JUDICIAL  INTERPRETATION. 

The  contrary  conclusion  of  the  Courts  is  well  summarized 
by  a  dictum,  perhaps  hastily  uttered,  of  the  Federal  Supreme 
Court.  These  are  its  words:  "The  main  purpose  of  such  con- 
stitutional provisions  is  to  prevent  all  such  previous  restraints 
as  had  been  practised  by  other  governments,  and  they  do  not 
prevent  the  subsequent  punishment  of  such  as  may  be  deemed 
contrary  to  the  public  welfare"  I1 

In  England  the  licensing  acts,  which  put  a  previous  restraint 
upon  publications,  existed  for  only  a  short  time,  and  finally 
expired  in  A.  D.  1694.2  It  seems,  therefore,  according  to  the 

'Patterson  v.   Colo.,  205  U.   S.  454,    (462). 

2Stevens'    "Sources   of   the   Constitution   of   the   U.    S.,"   p.   221;    Patterson's 
"'Liberty  of  Press  and   Speech,"   50  and  51. 

207 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

definition  of  our  American  Courts,  that  perfect  unabridged? 
liberty  of  speech  and  press  obtained  in  England  after  the  year 
1694,  because  no  licenser  prohibited  before  utterance,  and  there 
prevailed  a  system  of  subsequent  punishment  for  only  such 
opinions  as  were  deemed  contrary  to  the  public  welfare,  and 
for  nearly  a  century  preceding  our  Revolution  the  agitation 
for  larger  freedom  of  speech  and  of  the  press  was  a  vain 
demand  for  something  already  enjoyed  by  the  agitators,  but 
not  known  by  them  to  exist. 

However  ridiculous  such  judicial  implications  will  appear 
to  some,  the  official  eminence  of  the  many  judges  who  have 
sanctioned  that  doctrine,  and  especially  the  tremendous  con- 
sequence of  it  to  our  liberties,  precludes  levity.  We  will  there- 
fore proceed  in  all  seriousness  to  demonstrate  the  error  of  our 
courts  by  a  historical  study  and  a  scientific  interpretation  of 
the  facts.  Thus  it  will  be  made  to  appear  that  unabridged 
liberty  of  discussion  did  not  obtain  in  England,  or  its  American 
Colonies,  from  1694  until  the  American  Revolution,  and  that 
our  Constitutions  were  designed  to  change  the  prevailing 
system  of  an  abridged  and  abrid gable  liberty  of  discussion  by 
permission,  to  an  unabridged  and  unabridgable  liberty  of  dis- 
cussion as  a  constitutionally  guaranteed,  natural  right,  not  to 
be  ignored,  as  in  England,  or  Russia,  where  the  claim  of  such 
freedom  was  and  is  denied,  on  the  plea  of  furthering  the  public 
welfare. 

THE  EARLY  THEORY  AS  TO  FREE  SPEECH. 

In  England,  "before  public  meetings  were  resorted  to  as 
an  ordinary  exercise  of  self-government,  great  looseness  pre- 
vailed in  the  law,  the  theory  apparently  being  that  free-speech 
was  a  species  of  gift  by  the  Sovereign  to  the  people."*  To 
have  the  power  to  control  what  others  may  hear  or  see,  is  of 
course  to  that  extent  a  limitation  upon  their  right  to  acquire 
and  have  opinions — thus  abridging  the  liberty  of  conscience — 
since  one  cannot  well  acquire  opinions  the  materials  of  which- 
are  withheld  from  him.  Since  the  right  to  have  a  personal 
judgment  and  the  right  to  express  it  existed  only  as  a  gift 
from  kings  and  priests,  when  the  issuing  of  pamphlets  became 
an  extended  form  of  speech  nothing  was  more  natural  than 
that  at  first  "printing  was  treated  like  the  making  of  salamoniac 
and  apprentices  were  cautioned  not  to  lay  open  the  principles 
to  the  unfaithful  "* 

•Patterson's  "Liberty  of   Press,   p.   19. 

'Patterson's  "Liberty  of  Press,"  p.   43,  citing,   Bedcet  v.  Denison,  17  P»rL 
Hist.,  958. 

208 


INTERPRETATION   OF  "FREEDOM  OF  SPEECH   AND  OF  THE  PRESS." 

The  reasons  underlying  such  conclusions  are  fully  appreci- 
ated only  by  keeping  in  mind  the  English  conception  of  that 
period  as  to  the  nature  of  the  State.  The  features  especially 
to  be  remembered  are  the  union  of  Church  and  State,  and  the 
King's  rule  of  divine  right,  as  vice-gerent  for  the  Almighty, 
exercising  the  divinity's  political  omnipotence,  and  thus  being 
the  giver  of  all  good,  including  the  grant  of  commercial  oppor- 
tunity and  monopoly,  and  being  incapable  of  doing  any  wrong. 
It  necessarily  followed  from  such  premises  that  the  State- 
religion  be  declared  the  fundamental  and  controlling  part  of 
the  laws  of  England,  so  that  any  statute  made  against  "any 
point  of  the  Christian  religion  or  what  they  thought  was  the 
Christian  religion,  was  void."5 

From  such  considerations  there  grew  up  naturally  laws 
against  blasphemous  and  seditious  utterances.  That  these 
found  the  tap-root  of  their  justification  in  the  union  of  Church 
and  State  is  evident  from  such  judicial  unreason  as  the  follow- 
ing^ "To  say  that  religion  is  a  cheat,  is  to  dissolve  all  those 
obligations  whereby  civil  societies  are  preserved,  and  Christian- 
ity being  part  and  parcel  of  the  laws  of  England,  therefore 
lo  reproach  the  Christian  religion  is  to  speak  in  subversion  of 
the  law."6  This  doctrine  no  longer  obtains  in  England.7 

Since  man  can  impose  no  rightful  limitations  on  the  exer- 
cise of  power  by  those  who  rule  by  divine  right,  it  follows 
that  under  such  a  State  all  liberty  is  necessarily  only  liberty 
by  permission,  never  liberty  as  an  admitted  natural  right,  and 
necessarily  to  decry  religion  is  to  inculcate  treason  against 
those  whose  right  to  rule  is  founded  in  that  religion,  and  to 
attack  a  government  conducted  by  divine  right  is  in  its  turn 
irreligious  and  blasphemous.  So,  then,  admitting  the  premises 
of  their  Church-State,  the  Star  Chamber  was  quite  logical 
when  in  de  famosis  libellis  the  court  assumed  "that  words 
against  the  government  amount  to  sedition;  and  that  words 
against  an  archbishop  are  words  against  the  government."8 

Necessarily,  under  such  a  State,  those  who  opposed  the 
existing  restrictions  upon  speech  and  press  were  promoting 
irreligion,  and  therefore  treason  against  both  earthly  and 
heavenly  governments.  In  that  controversy,  the  demand  for 
unabridged,  or  even  larger  freedom  of  heretical  religious  utter- 
ance, necessarily  included  a  demand  for  the  right  to  advocate 
even  treason,  and  of  course  logically  must  include  all  the  lesser 

•Patterson's  "Liberty  of  Press  and  Speech,"  p.  67,  citing  10  St.  Tr.  375. 
•Reg.  v.  Taylor,   Ventris,  293. 

7See    "Blasphemy    and    Blasphemous    Libel,"    by    Sir    Fitz    Tames    Stephens. 
Fortnightly  Re-view,   Mar.,   1884. 
*  Mence  on   Libel,  p.   289. 

209 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

crimes.  Although  in  America  we  boast  of  having  outgrown  at 
least  the  avowed  union  of  Church  and  State,  we  still  retain 
that  union  in  fact,  by  virtue  of  many  repressive  laws  which 
have  no  other  foundation  than  the  precedents  of  a  Church- 
State,  and  the  moral  sentimentalizing  associated  with,  or 
anchored  in,  religion.  In  studying  the  English  precedents  we 
must  always  bear  in  mind  the  before-mentioned  essential  differ- 
ence in  our  theories  of  government  and  the  resultant  difference 
between  liberty  merely  by  permission  and  liberty  as  a  constitu- 
tionally guaranteed  natural  right. 

ON   CONSTITUTIONAL  DESIGN. 

Our  constitutional  guarantees  upon  this  subject  are  both 
useless  and  meaningless  except  on  the  assumption  that  they 
were  designed  to  repudiate  the  old  theory  that  freedom  of 
utterance  is  liberty  by  permission  or  grant,  and  were  intended 
to  establish  intellectual  liberty  as  a  matter  of  constitutionally 
guaranteed  unabridgable  natural  right. 

If  it  was  not  the  design  to  change  the  English  system  of 
liberty  by  permission  to  one  of  liberty  as  a  right,  then  there  was 
no  reason  for  any  constitutional  provision  upon  the  subject. 
If  the  only  purpose  was  to  preclude  the  creation  of  an  official 
censor,  the  easiest  way  would  have  been  to  have  had  the  Con- 
stitution say,  "No  censor  shall  ever  be  appointed,"  or,  "No 
previous  restraints  shall  be  put  upon  speech  or  press."  Thus 
there  would  be  no  restriction  upon  other  modes  of  abridging 
freedom  of  utterance.  If  the  intention  had  been  that  a  power 
should  remain  which,  by  subsequent  punishment,  would  sup- 
press those  discussions  and  ideas  which  were  deemed  contrary 
to  the  public  welfare,  then,  again,  there  was  no  need  for  any 
constitutional  provision  upon  the  subject,  because  no  other 
opinions  than  such  as  had  been  deemed  contrary  to  the  public 
welfare  ever  had  been  suppressed  anywhere.  If  it  is  possible 
to  assume  that  the  purpose  of  amending  our  Federal  Constitu- 
tion was  to  preclude  Congress  from  punishing  men  for  publish- 
ing ideas,  believed  by  it  to  be  conducive  to  welfare,  then  we 
might  still  expect  that  the  most  appropriate  language  would 
have  been  used.  Then  our  Constitution  might  have  read  thus : 
"Congress  shall  make  no  law  abridging  freedom  of  speech  or 
of  the  press,  except  in  the  interest  of  the  public  welfare."  But 
the  insistence  here  is  that  such  exception  cannot  properly  be 
interpolated  into  our  Constitution  by  judicial  action. 

I  utterly  repudiate  the  dogmatic  paradox  of  our  courts, 

210 


INTERPRETATION  OF 

which,  while  claiming-  to  construe  our  Constitutions,  declare 
that  the  words,  the  legislature  "shall  make  no  law  abridging"," 
etc.,  mean  that,  in  the  alleged  interest  of  the  public  welfare,  it 
may  enact  any  abridging  laws  it  sees  fit,  if  thereby  no  restraint 
is  imposed  prior  to  publication. 

It  does  seem  to  me  that  these  few  suggestions,  together 
with  a  bit  of  critical  thought  on  the  words  themselves,  as  used 
in  our  Constitutions,  should  be  all  that  is  necessary  in  justifica- 
tion of  my  contention.  However,  the  abundance  of  judicial 
dogmatism  to  the  contrary,  and  the  general  acquiescence  there- 
in, persuade  me  that  a  more  elaborate  study  of  the  historical 
factors  is  quite  indispensable  for  most  minds,  even  of  the  sort 
that  have  capacity  for  logical  thinking  upon  this  subject. 

THE   METHOD  OUTLINED. 

In  the  scientific  aspect,  our  social  and  political  institutions, 
like  all  other  natural  phenomena,  are  but  special  manifestations 
of  the  all-pervading  law  of  evolution.  With  enlarged  experi- 
ences, we  change  our  conceptions  of  what  is  required  by  the 
natural  law  of  our  social  relations,  and  accordingly  we  change 
our  verbal  statements  of  law.  It  follows  that  the  laws  of  a 
State  always  seem  to  be  approaching,  but  never  attain,  perfec- 
tion. This  seeming  corresponds  to  the  reality  so  long  as  the 
dominant  conception  of  the  law  is  nearing  the  truly  scientific.  By 
a  scientific  conception  of  the  law,  I  mean  one  wherein  the  em- 
pirical generalizations  have  all  been  included  in  one  rational 
generalization,  which  is  the  law  upon  the  subject,  because  it  is 
derived  wholly  from  the  nature  of  things;  and,  in  every  state 
of  facts  to  which  it  can  be  applied,  it  conclusively  determines 
the  how  and  the  why  certain  judgments  must  be  so,  and  thus, 
the  result  always  being  derived  exclusively  by  deductions  from 
the  ultimate  rational  generalization,  which  thus  furnishes  the 
only  standard  of  judgment  determining  the  decision  in  every 
particular  case,  that  law  must  always  be  conformed  to,  irre- 
spective of  the  direct  estimate  of  the  beneficence  of  its  results 
in  any  particular  instance  ?9 

I  venture  the  assertion  that  no  one  who  has  understandingly 
read  the  foregoing  statement  of  the  meaning  of  "Law"  and 
who  has  also  read  the  judicial  opinions  as  to  the  meaning  of 
unabridged  freedom  of  speech  and  of  the  press,  will  claim  that 
any  American  court  has  ever  attempted  to  declare  the  law  of 
our  Constitutions  as  to  the  freedom  of  utterance,  because  no 

•See,  v.  42,  Am.  Law  Review,  p.  360. 

211 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

court  has  ever  attempted,  even  in  a  crude  way,  to  furnish  us 
with  any  comprehensive  statement  of  the  criteria  for  judging 
the  constitutionality  of  enactments  relating  to  speech  or  press. 

In  England,  where  there  is  no  constitutional  limitation 
upon  the  power  of  Parliament  to  abridge  freedom  of  utterance, 
it  was  said,  after  the  passage  of  the  Fox  libel  act,  that 
^'Freedom  of  discussion  is  little  else  than  the  right  to  write 
or  say  anything  which  a  jury,  consisting  of  twelve  shopkeepers, 
think  it  expedient  should  be  said  or  written."10  That  is  freedom 
as  a  matter  of  expediency  and  by  permission,  the  only  kind 
of  freedom  of  speech  and  press  that  has  ever  obtained  in  Eng- 
land or  Russia.  How  useless  then  is  our  Constitution  if,  as 
the  Courts  quite  uniformly  assert,  unabridged  and  unabridg- 
able  freedom  of  discussion  is  the  right  to  say  whatever  a  legis- 
lature of  mediocre  attainments  may  think  it  expedient  to  permit 
to  be  said?  If  our  constitutional  guarantees  declare  and  de- 
termine rights,  then  these  cannot  be  destroyed  by  the  arbitrary 
decree  of  the  legislature,  even  though  done  in  the  alleged 
interest  of  the  public  welfare.  If  the  Constitution  is  a  law 
of  right,  then  its  declarations  are  always  to  be  obeyed,  even 
though  the  legislature  and  court  concur  in  the  belief  that  in  a 
particular  case  the  exercise  of  a  constitutional  right  is  against 
the  public  welfare.  Neither  can  such  belief  invest  them  with 
the  authority  to  amend  the  Constitution  so  as  to  make  it  read, 
"Congress  shall  make  no  law  abridging  freedom  of  speech  or 
of  the  press  except  as  to  those  ideas  which  it  deems  contrary 
to  the  public  welfare."  If  we  are  to  preclude  such  dogmatic 
judicial  amendments  of  our  Constitutions,  we  must  develop 
in  the  judicial  mind,  by  the  scientific  method,  a  conception  of 
constitutional  law  in  accord  with  the  conception  of  the  legal 
scientist. 

The  materials  for  a  scientific  interpretation  of  the  Consti- 
tution are  antecedent  historical  controversies,  whose  issues  the 
Constitution  was  intended  to  decide.  The  method  must  be  to 
trace  the  evolution  of  the  idea  of  unabridged  freedom  of  dis- 
cussion, from  its  inception  as  a  mere  personal  protest  and 
mere  wish  of  the  individual  to  be  personally  free  from  a  partic- 
ular interference,  through  unnumbered  empirical  inductions  to 
the  impersonal  recognition  of  a  general  principle  underlying 
all  such  protests  and  demands,  and  determining  the  rightfulness 
of  them.  To  achieve  this  we  must  study  the  historical  contro- 
versies and  the  primitive  crude  demands  for  a  lesser  abridg- 

10Dicey,   "The  Law  of  the  Constitution,"  p.   234. 


212 


INTERPRETATION   OF   "FREEDOM   OF  SPEECH    AND  OF  THE  PRESS/' 

ment  of  intellectual  liberty,  that  we  may  discover  the  common 
elements  in  all  these  varying  demands,  and  when  we  have  thus 
discovered  the  elements  of  unification  common  to  all  these 
struggles  for  a  lesser  abridgment  of  intellectual  liberty,  have 
studied  the  various  historical  means  of  abridgment  from  which 
arose  the  controversies  which  were  settled  by  our  Constitutions, 
and  have  generalized  the  inhibition  against  all  similar  recur- 
rences, we  may  achieve  a  scientific  conception  of  what  is  meant 
by  an  abridgment  of  freedom  of  speech.  This  will  be  a  rational 
generalization  giving  us  the  criteria  by  which  to  judge  whether 
or  not  a  particular  enactment  is,  or  is  not,  a  breach  of  the 
constitutional  right  of  an  unabridged  freedom  of  utterance. 

THE  DISPUTANTS  CLASSIFIED. 

I  cannot  resist  the  feeling  that  it  is  an  awful  reflection 
upon  the  general  and  the  judicial  "intelligence"  that  any  argu- 
ment should  be  deemed  necessary  to  show  the  absurdity  of  the 
official  "construction"  of  our  Constitutions.  Manifestly,  it  is 
urgently  necessary,  and  it  is  to  this  end  that  we  are  to  make  a 
more  precise  analysis  of  the  historical  controversy  which,  in 
America,  culminated  in  the  adoption  of  our  constitutional 
guarantees  for  unabridged  freedom  of  speech  and  of  the  press. 
In  making  our  analysis  of  the  historical  contentions,  we  must 
keep  in  mind  at  least  three  main  classes  of  disputants. 

The  first  and  most  popular  class  consisted  of  those  emi- 
nently respectable  and  official  persons  who  asserted,  not  only 
the  existence  of  a  proper  governmental  authority  to  abridge 
in  every  manner  the  intellectual  liberty  of  the  citizen,  but  who 
also  defended  every  existing  method  by  which  the  power  was 
being  exercised.  This  class  was  the  only  one  fortified  by  official 
justifications  and  judicial  definitions  of  the  pre-r evolutionary 
period. 

To  the  second  class  belonged  those  conservative  reformers 
who  did  not  question  the  existence  of  a  power  to  control 
legally  the  intellectual  food-supply  of  the  populace,  but  who 
did  question  some  particular  manner  of  its  exercise.  These 
usually  believed  in  a  larger  liberty  of  speech  and  press,  but  did 
not  demand  that  it  be  wholly  unabridged,  and  usually  their 
arguments  were  directed  only  to  the  inexpediency  of  some 
particular  abridgment  and  not  tc*yard  the  defense  of  liberty 
as  an  unabridgable  natural  right.  Among  these  could  be  found 
persons  who  demanded  larger  liberty  for  the  promotion  of 

213 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

their  own  heresies,  but  justified  the  punishment  of  other  her- 
etics ;  there  were  those  who  demanded  liberty  for  the  discussion 
of  religion,  but  hastened  to  out-Herod  Herod  in  their  justifica- 
tion of  the  punishment  of  the  psychologic  crime  of  verbal 
treason.  Others,  like  Erskine,  demanded  a  larger  liberty  for 
the  criticism  of  government,  but  hastened  to  give  assurance  of 
their  entire  orthodoxy  by  joining  in  the  clamor  for  the  punish- 
ment of  religious  heretics.  Should  we  mistake  any  of  these 
disputants  as  the  defenders  of  unabridged  freedom  of  speech 
and  press,  and  adopt  their  definitions  of  liberty,  as  a  means 
of  constitutional  construction,  we  should  of  course  be  led 
far  astray  and  reduce  our  constitutional  right  to  unabridged 
freedom  to  a  limited  liberty  by  permission. 

The  third  class  of  controversialists  was  composed  of  those 
few  who  denied  the  existence  of  any  rightful  authority  for  the 
punishment  of  any  mere  psychologic  crimes,  and  who  therefore 
demanded  the  establishment  and  maintenance  of  unabridged 
liberty  of  utterance.  It  was  the  contention  of  these  persons 
which  was  adopted  into  our  Constitutions,  and  it  is  their  state- 
ment of  the  meaning  of  "freedom  of  speech"  which  should 
be  made  the  basis  for  constitutional  construction,  and  not  the 
judicial  precedents  of  the  Star  Chamber,  expressing  the  Eng- 
lish practise  from  the  viewpoint  of  the  Church-State,  which 
viewpoint  was  repudiated  by  our  American  States  and  which 
precedents  were  overruled  by  our  American  Constitutions. 
Unfortunately,  these  precedents  are  still  often  followed  by  our 
American  Courts,  whose  judges  are  supposed  to  be  the  con- 
servators, but  often  act  as  the  destroyers,  of  our  liberty, 
especially  when  unpopular  and  disapproved  utterances  are  in- 
volved. 

The  varying  conceptions  of  the  limits  of  freedom  of  utter- 
ance, as  advocated  by  these  classes  of  controversialists,  will 
now  be  exemplified  by  illustrative  quotations,  that  we  may 
show  what  was  meant  by  an  unabridged  liberty  of  utterance,  by 
those  whose  views  were  incorporated  in  our  Constitutions. 

LICENSING  THE  PRINTER. 

The  press  was  introduced  into  England  by  Henry  VII. 
From  this  fact,  together  with  the  prevailing  opinion  that  the 
whole  matter  of  freedom  of  speech  was  one  of  permission,  or 
gift  from  the  Sovereign,  nothing  was  more  natural  than  that 
Edward  the  VI.  should  by  patent  appoint  a  printer,  who  was 

214 


INTERPRETATION   OF 

to  print  and  sell  all  Latin,  Greek,  and  Hebrew  books,  as  well 
as  all  others  that  might  be  commanded,  and  penalties  were 
denounced  for  infringing  his  monopoly.  Subsequently,  the 
number  of  licensed  printers  was  enlarged,  but  for  a  consider- 
able time  it  was  limited.11  In  this  form  of  license,  the  letter 
of  the  law  made  no  discrimination  against  a  book  according  to 
the  sentiments  expressed.  The  license  seems  rather  to  have 
been  a  business  monopoly  given  to  some  court  favorite,  and  a 
matter  of  confidence  in  the  printer,  as  one  having  the  discretion 
to  publish  nothing  inimical  to  the  grantors  of  his  special 
privilege.  Of  course,  this  public  printer  did  not  publish  for 
future  reference  any  of  the  arguments  against  his  monopoly. 
Could  we  now  look  back  to  analyze  the  opposition  to  this  first 
form  of  licensing,  we  would  seek  for  two  possible  explana- 
tions of  it.  According  to  one,  freedom  of  the  press  might 
mean  only  the  commercial  freedom  to  use  the  press  as  a  tool 
of  trade,  in  commercial  competition  with  the  Crown-mon- 
opolists, and  a  modern  judge,  adopting  that  conception  as  a 
basis  for  constitutional  construction,  might  uphold  a  law  cre- 
ating a  censorship  over  only  the  character  of  the  printed 
matter,  and  not  directly  and  immediately  affecting  the  equality 
of  commercial  opportunity  in  the  use  of  the  printing  press  as 
an  instrument  of  commerce.  According  to  this  first  point  of 
view,  the  abolition  of  this  monopoly  was  the  chief,  or.  only, 
end  in  view,  and  this  object  would  not  be  in  the  least  interfered 
with  by  a  new  form  of  censorship  directed  against  particular 
psychologic  tendencies  of  opinions,  which  would  leave  in- 
tellectual liberty  just  as  much  abridged  as  before. 

The  other  view  would  be  that  the  opposition  to  licensing 
of  the  printer  was  based  principally  upon  the  demand  for  a 
larger  intellectual  liberty,  by  equalizing  the  opportunity  of  all 
for  using  the  press  as  an  extended  form  of  speech.  In  this 
second  view,  the  mere  abolition  of  the  license  for  printers' 
monopoly  is  not  an  end  in  itself,  but  a  mere  means  to  the  end 
of  increasing  intellectual  liberty  and  opportunity,  a  viewpoint 
quite  constantly  ignored  in  our  judicial  utterances  upon  this 
subject.  It  is  unthinkably  paradoxical  that  the  few  friends 
of  freedom  of  speech  and  of  the  press  who  existed  at  that 
time  should  have  had  no  interest  in  the  enlargement  of  in- 
tellectual liberty,  and  were  interested  only  in  the  enlarged 
opportunity  for  the  use  of  the  press  as  a  tool  of  trade. 

Of  course  this  view,  that  enlargement  of  intellectual  op- 

"Paterson's  "Liberty  of  Press,"  p.  44. 

215 


OBSCENE    LITERATURE   AND   CONSTITUTIONAL   LAW. 

portunity  was  the  chief  end  sought,  is  confirmed  by  the  related 
controversial  literature  of  approximately  that  time.  As  I 
write  this,  I  have  open  before  me  a  volume  in  which  are 
reprinted  the  tracts  on  "Liberty  of  Conscience"  which  had  been 
published  prior  to  1661.  These  express  "the  first  articulations 
of  infant  liberty."  The  arguments  are  in  the  main  very  crude, 
as  arguments  for  liberty.  They  may  be  clearly  divided  into  a 
few  general  classes :  First,  "we  dissenters  are  right,  therefore 
ought  to  be  tolerated."  Second,  "the  Bible  teaches  toleration, 
therefore  we  should  be  tolerated."  Third,  "it  is  not  in  the 
power  of  man  to  believe  as  he  wills,  but  he  believes  as  he  must, 
and  he  therefore  should  not  be  punished  for  expressing  con- 
victions he  cannot  escape."  This  last  is  a  good  argument 
against  the  injustice  of  punishing  "dangerous"  opinions,  even 
yet.  Amid  much  crude  thinking,  there  are  some  few  very 
clear  perceptions,  excluding  all  mere  psychological  ci  imes  from 
the  legitimate  province  of  government.  To  this  end,  Luther 
was  quoted  and  his  thought  is  several  times  restated  by  dif- 
ferent authors.  Luther's  words  are  these :  "The  laws  of  civil 
government  extend  no  further  than  over  the  body  and  goods, 
and  that  which  is  external:  For  over  the  Soul,  [mind]  God 
will  not  suffer  man  to  rule."  Such  were  the  contentions  made 
in  behalf  of  liberty  of  speech,  or,  "the  liberty  of  prophesying,"  . 
as  it  was  then  often  called.  One  would  look  in  vain  through 
this  volume  of  early  tracts  for  any  suggestion  that  the  larger 
liberty  contended  for,  or  an  unabridged  freedom  of  discussion, 
consisted  only  in  the  absence  of  a  prior  censorship.  I  do  not 
recall  even  a  single  mention  of  a  previous  censorship  as  the 
essence  of  the  evil,  nor  mere  commercial  opportunity  to  use 
the  press  as  a  tool  of  trade,  as  an  end  to  be  achieved.  Always 
the  demand  was  for,  and,  indeed,  the  arguments  were  all  in 
furtherance  of,  a  larger  intellectual  liberty,  and  sometimes 
demanded  an  unabridged  liberty  of  utterance,  by  excluding  all 
psychological  offenses  from  the  jurisdiction  of  the  criminal 
law. 

These  early  tracts,  so  far  as  they  go,  are  a  vindication  of 
the  contention,  stated  at  the  head  of  this  essay,  as  that  relates 
to  the  period  prior  to  1661.  It  is  utterly  absurd  for  our  courts 
to  intimate,  as  they  do,  that  the  real  friends  of  unabridged 
intellectual  opportunity  were  ever  concerned  only  with  the 
mere  time  or  manner  (rather  than  the  substance)  of  the 
abridgment  of  liberty.  The  friends  of  freedom  never  sought 

216 


the  abolition  of  previous  restraint  in  favor  of  subsequent 
punishment,  as  an  end  in  itself,  but  were  seeking  to  enlarge 
intellectual  opportunity  as  against  abridgment  either  by  prior 
restraint  or  subsequent  punishment. 

No  doubt  it  was  in  this  early  protest  against  a  licensed 
printer  that  the  phrase  "Freedom  of  the  Press"  came  into  use, 
for  here  only  does  it  have  a  literal  signification.  When  the 
press  was  made  free,  as  an  instrument  of  trade,  the  shifty 
tyrant  saw  to  it  that  no  enlargement  of  intellectual  opportunity 
resulted. 

USURPATION  BY  THE  "STAR  CHAMBER/' 

Prior  to  1637  there  seems  to  have  been  no  criminal  penalties 
inflicted  by  the  English  secular  courts,  for  mere  psychological 
offenses,  such  as  the  expression  of  unpopular  opinions.  "The 
Common  Law  took  cognizance  of  no  injuries  but  such  as 
affected  persons  or  property.""  In  1637  the  Star  Chamber, 
which  never  hesitated  to  assume  the  most  preposterous  powers, 
usurped  the  legislative  function  of  penalizing  libel,  by  its 
decree  regulating  the  press.1'  This  Judicial  lawlessness,  in 
usurping  the  power  to  punish  mere  psychologic  crimes  under 
ex  post  facto  criteria  of  guilt,  of  course  provoked  criticism 
from  those  who  loved  liberty  and  knew  something  of  its 
^nature,  and  no  doubt  it  also  secured  for  "the  watchtower  of  the 
King"  the  hearty  approval  of  all  tyrants,  for  the  protection 
of  whose  reputation  and  prerogatives  this  abridgment  of  free- 
dom of  utterance  was  inaugurated.  This  usurped  censorship 
and  the  accompanying  ex  post  facto  penalization  of  mere 
psvchologic  crimes,  were  among  the  last  and  most  hideous  of 
the  acts  of  this  infamous  "Judicial"  body,  for  the  Star  Cham- 
ber was  abolished  in  1640.  No  doubt  the  hostility  excited  by 
its  outrageous  creation  and  enforcement  of  laws  against  mere 
verbal  crimes  contributed  much  towards  the  downfall,  but 
tyranny  did  not  die  with  the  institution  that  invented  this 
special  means  to  its  end.  The  co-tyrants  of  the  Star  Chamber 
Court  and  their  successors,  prompted  by  the  same  inordinate 
lust  for  power  and  preferring  to  be  relieved  of  the  occasion  for 
defending  their  official  conduct,  have  continued,  with  slight 
modifications  and  very  brief  cessations,  to  this  very  day  to  act 
upon  the  precedents  of  the  abhorred  Star  Chamber.  Parlia- 
mentary enactment  along  similar  lines  soon  took  the  place  of 
Star  Chamber  decrees,  and  vagueness  in  the  legislative  defini- 

"Mence  on  Libel,  p.  333. 

"Patterson  on  "Liberty  of  Press  and  Speech,"  45;  Mence,  "Law  of  Libel," 
Chapt.  9,  (1824);  "The  Freedom  of  Speech  and  Writing,"  pp.  47,  49.  99,  (Lend., 
1766). 

217 


OBSCENE   LITERATURE    AND   CONSTITUTIONAL   LAW. 

tion  of  criminal  libel  left  quite  unimpaired  the  power  for  an 
ex  post  facto  creation  of  the  criteria  of  guilt.  So  it  comes 
to  pass  that,  while  maintaining  some  of  the  outward  seemings 
of  law,  the  fundamental  evils  of  judicial  despotism  still  exist, 
even  in  those  countries  whose  inhabitants  are  most  vociferous 
in  their  stupid  boast  over  a  purely  imaginary  liberty.  How- 
ever, let  it  be  said,  that  the  savagery  of  the  penalties  has  been 
a  little  abated,  even  though  on  the  whole  intellectual  liberty 
has  received  no  substantial  enlargement.  What  has  been 
gained  as  to  some  subjects  has  been  lost  as  to  others.  Some 
comparison  as  to  this  would  be  interesting  but  is  not  within  the 
scope  of  this  essay. 

LICENSING  THE  BOOK. 

The  licensing  of  one  printer  was  succeeded  by  the  licensing 
of  many  and  later  by  the  abolition  of  this  system  in  its  entirety, 
allowing  all  alike  to  use  the  printing  press  as  an  instrument  of 
commerce,  but  maintaining  inequalities  as  to  its  use  in  the 
distribution  of  ideas.  Here  I  have  reference  to  those  various 
licensing  acts,  expiring  in  1694,  which  succeeded  to  the  Star 
Chamber  decrees,  and  by  which  a  censor  authorized  particular 
books  to  be  printed,  and  all  publications  not  so  authorized 
were  penalized.  It  was  against  this  censorship  that  Milton 
directed  his  immortal  essay,  "Areopagitica." 

Here,  again,  we  must  seek  an  answer  to  the  same  old 
question,  Is  it  true,  as  our  courts  generally  assert,  that  Milton 
and  others  who  opposed  these  licensing  acts  were  concerned 
only  with  the  manner  and  not  with  the  substance  of  this  abridg- 
ment of  freedom  of  the  press?  Is  it  true,  as  our  courts  usually 
imply,  that  the  opponents  of  these  licensing  acts  demanded 
only  the  abolition  of  the  censor  and  previous  restraint,  and 
were  quite  willing  to  admit  a  power  to  punish  subsequent  to 
publication  all  those  opinions  which  formerly  had  been  denied 
the  necessary  license  for  getting  into  print?  In  Milton's  time, 
one  might  print  unpopular  opinions,  which  the  licenser  had 
disapproved,  and  be  punished  if  caught.  This  the  Supreme 
Court  of  the  United  States  says  is  an  abridgment  of  freedom 
of  the  press.  However,  if  there  is  no  previous  censorship, 
and  although  you  receive  the  same  penalty,  merely  for  publish- 
ing the  same  book,  because  a  legislature  or  jury  deem  it 
contrary  to  the  public  welfare,  then  unabridged  liberty  of  the 
press  is  thereby  preserved,  for  "the  greatest  judicial  tribunal 

218 


INTERPRETATION   OF   "FREEDOM   OF  SPEECH   AND  OF  THE  PRESS/' 

on  earth"  has  said  that  a  constitutionally  guaranteed  natural 
right  to  unabridged  freedom  of  press  calls  for  the  cessation  of 
"all  such  previous  restraints  as  had  been  practised  by  other 
governments,  and  [but]  does  not  prevent  the  subsequent  pun- 
ishment of  such  [publications]  as  may  be  deemed  against  the 
public  welfare." 

In  other  words,  our  courts  declare  that  our  constitutional 
right  to  unabridged  freedom  of  utterance  deals  only  with  the 
manner  and  time  of  the  abridgment,  or  the  tribunal  which 
inflicts  it,  and  has  nothing  to  do  with  unabridged  intellectual 
opportunity  to  utter,  to  hear,  and  to  read.  Be  it  remembered, 
however,  that  no  such  distinction  in  favor  of  any  ex  post  facto 
censorship  can  be  deduced  from  the  very  words  of  our  Con- 
stitutions, nor  from  the  historical  controversy  culminating  in 
their  adoption,  and,  therefore,  these  exceptions  to  unabridged 
freedom  are  a  matter  of  judicial  creation — that  is,  of  judicial 
constitutional  amendment. 

IN  DEFENSE  OF  THE  CENSORSHIP. 

Then,  as  now,  the  advocates  for  the  suppression  of  un- 
popular opinions  refused  to  see  that  to  admit  the  existence  of 
the  power  to  suppress  any  opinion,  is,  in  the  long  run,  more 
destructive  to  human  well-being  than  the  ideas  against  which 
they  would  have  the  power  exercised.  Then,  as  now,  the 
alleged  immediate  public  welfare  was  the  justification  of  every 
form  of  censorship,  and  some  dangerous  "tendency,"  only 
speculatively  ascertained  and  usually  so  in  a  feverishly  appre- 
hensive imagination,  was  always  the  test  of  guilt.  "The  most 
tyrannical  and  the  most  absolute  governments  speak  a  kind 
parental  language  to  the  abject  wretches  who  groan  under 
their  crushing  and  humiliating  weight.""  To  make  this  clearr 
it  is  necessary  only  to  quote  a  few  passages  from  a  publication 
dated  A.  D.,  1680,  and  written  in  defense  of  the  abridgments 
of  freedom  of  speech  and  press.  Sir  Robert  L'Estrange  in,  "A 
Seasonable  Memorial  in  some  Historical  Notes  upon  the  Liber- 
ties of  the  Press  and  Pulpit,"  quotes  Calvin  as  saying:  "There 
are  two  sorts  of  seditious  men,  and  against  both  these  must 
the  sword  be  drawn ;  for  they  oppose  the  King  and  God  him- 
self." He  then  exhibits  the  evolution  of  dangerous  tendencies 
by  these  words :  "First  they  find  out  corruptions  in  the  Gov- 
ernment, as  a  matter  of  grievance,  which  they  expose  to  the 
people.  Secondly,  they  petition  for  Redress  of  those  Griev- 

"Erskine  in  defense  of  Carnan. 

2I9 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

ances,  still  asking  more  and  more,  till  something  is  denied 
them.  And  then,  Thirdly,  they  take  the  power  into  their  own 
hands  of  Relieving  themselves,  but  with  Oaths  and  protestations 
that  they  act  only  for  the  Common  Good  of  King  and  Kingdom. 
From  the  pretense  of  defending  the  Government  they  proceed 
to  the  Reforming  of  it;  which  reformation  proves  in  the  end 
to  be  a  Final  Dissolution  of  the  order  both  of  Church  and 
State.  *  *  *  *  Their  consciences  widened  with  their  interest. 
*  *  *  *  First,  they  fell  upon  the  King's  Reputation;  they  in- 
vaded his  authority  in  the  next  place ;  after  that  they  assaulted 
his  Person,  seized  his  Revenue;  and  in  the  conclusion  most 
impiously  took  away  his  Sacred  Life.  *  *  *  *  The  Transition 
is  so  natural  from  Popular  Petition  to  a  Tumult,  that  the  one 
is  but  a  Hot  Fit  of  the  other;  and  little  more  than  a  more  earnest 
way  of  petitioning.  *  *  *  *  They  Preach  the  People  into 
murther,  sacrilege,  and  Rebellion ;  they  pursue  a  most  gracious 
Prince  to  the  scaffold ;  they  animate  the  Regicides,  calling  that 
Execrable  villainy  an  act  of  Public  Justice,  and  entitling  the 
Holy  Ghost  to  Treason."16 

This  argument,  backed  by  the  historical  fact,  is  unanswer- 
able to  the  point  that  to  permit  freedom  of  criticism  of  Govern- 
ment and  its  officials,  and  to  allow  the  presentation  of  petitions 
for  the  redress  of  grievances,  is  to  permit  that  which  tends 
to  promote  actual  treason  and  rebellion.  It  follows  that  those 
who  were  demanding  the  opportunity  to  express  their  senti- 
ments in  criticism  of  official  conduct  were  in  effect  demanding 
the  right  verbally  to  promote  treason  with  impunity,  because 
that  was  the  demonstrated  tendency  of  such  utterances.  That 
is  what  unabridged  freedom  of  speech  and  of  the  press  meant 
to  its  advocates,  and  our  constitutional  guarantee  for  an  un- 
abridged freedom  of  utterance  was  a  final  decision  in  favor  of 
that  view  and  against  all  mere  psychologic  crimes,  including 
even  verbal  "treason." 

THE  DEFENSE  OF  FREEDOM,  BY  MILTON. 

In  further  justification  of  the  contention  that  unabridged 
freedom  of  utterance  as  a  matter  of  right  precludes  the  sup- 
pression of  opinions  having  a  "dangerous"  tendency,  either 
by  direct  prior  restraint  or  subsequent  punishment — the  fear 
of  which  always  operates  as  a  prior  restraint — we  should 
contrast  the  foregoing  argument  for  restricting  speech  with 
the  historic  argument  for  freedom  made  in  Milton's  "Areo- 

1BIn  addition  to  "A  Seasonable  Memorial,"  see,  for  similar  argument,  MA 
Discourse  of  Ecclesiastical  Politic,  wherein  the  Mischiefs  and  Inconveniences  of 
Toleration  are  Represented,"  London,  1670. 

220 


INTERPRETATION   OF   "FREEDOM   OF  SPEECH    AND  OF  THE  PRESS/' 

pagitica."  Here  we  can  quote  only  a  few  paragraphs  tending 
to  show  what  freedom  of  speech  meant  to  its  friends.  Not 
a  word  can  be  found  to  suggest  ex  post  facto  punishment  as 
a  substitute  for  previous  restraint. 

Milton  writes:  "Till  then,  books  were  ever  as  freely  ad- 
mitted into  the  world  as  any  other  birth ;  the  issue  of  the  brain 
was  no  more  stifled  than  the  issue  of  the  womb.  *  *  *  *  'To  the 
pure  all  things  are  pure,'  not  only  meats  and  drinks,  but  all 
kinds  of  knowledge,  whether  of  good  or  evil ;  the  knowledge 
cannot  defile,  nor  consequently  the  books,  if  the  will  and 
conscience  be  not  defiled.  For  books  are  as  meats  and  viands 
are,  some  of  good  and  some  of  evil  substance;  and  yet  God 
in  that  unapocryphal  vision  said,  without  exception,  "Rise, 
Peter,  kill  and  eat,"  leaving  the  choice  to  man's  discretion. 
Wholesome  meats  to  a  vitiated  stomach  differ  little  or  nothing 
from  unwholesome,  and  best  books  to  a  naughty  mind  are  not 
unapplicable  to  occasions  of  evil.  Bad  meats  will  scarce  breed 
good  nourishment  in  the  healthiest  concoction;  but  herein  the 
difference  is  of  bad  books,  that  they  to  a  discreet  and  judicious 
reader  serve  in  many  respects  to  discover,  to  confute,  to 
forewarn,  and  to  illustrate.  *  *  *  *  All  opinions,  yea,  errors, 
known,  read  and  collated,  are  of  main  service  and  assistance 
toward  the  speedy  ascertainment  of  what  is  truest.  *  *  *  *  For 
those  actions,  which  enter  into  a  man  rather  than  issue  out  of 
him  and  therefore  defile  not,  God  uses  not  to  captivate  under 
a  perpetual  childhood  of  prescription,  but  trusts  him  with  the 
gift  of  reason  to  be  his  own  chooser.  *  *  *  * 

"I  cannot  praise  a  fugitive  and  cloistered  virtue,  unexer- 
cised  and  unbreathed,  that  never  sallies  out  and  sees  her 
adversary,  but  slinks  out  of  the  race,  where  that  immortal 
garland  is  to  be  run  for,  not  without  dust  and  heat.  Assuredly 
we  bring  not  innocence  into  the  world,  we  bring  impurity  much 
rather;  that  which  purifies  us  is  trial,  and  trial  is  by  what  is 
contrary.  That  virtue  which  is  but  a  youngling  in  the  con- 
templation of  evil,  and  knows  not  the  utmost  that  vice  promises 
to  her  followers,  and  rejects  it,  is  but  a  blank  virtue,  not  a 
pure ;  her  whiteness  is  but  an  excremental  whiteness.  *  *  *  * 

"Since,  therefore,  the  knowledge  and  survey  of  vice  is  in  this 
world  so  necessary  to  the  constituting  of  human  virtue,  and  the 
scanning  of  error  to  the  confirmation  of  truth,  how  can  we 
more  safely,  and  with  less  danger,  scout  into  the  regions  of 
sin  and  falsity,  than  by  reading  all  manner  of  tractates,  and 

221 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

hearing  all  manner  of  reason?  *  *  *  *  Truth  and  understanding 
are  not  such  wares  as  to  be  monopolized  and  traded  in  by 
tickets  and  statutes  and  standards.  *  *  *  *  Give  me  the  liberty 
to  know,  to  utter,  and  to  argue  freely  according  to  conscience, 
above  all  [other]  liberties. 

"Though  ye  take  from  a  covetous  man  all  his  treasure,  he 
has  yet  one  jewel  left;  ye  cannot  bereave  him  of  his  covetous- 
ness.  Banish  all  objects  of  lust,  shut  up  all  youth  into  the 
severest  discipline  that  can  be  exercised  in  any  hermitage,  ye 
cannot  make  them  chaste  that  came  not  hither  so." 

And  yet  Milton,  though  he  made  an  unanswerable  argument 
for  a  totally  unabridged  freedom  of  utterance,  could  not  get 
wholly  beyond  all  his  religious  prejudices,  and  so,  although  the 
argument  made  no  provision  for  it,  he  found  it  necessary  dog- 
matically to  provide  for  one  exception.  "I  mean  not  tolerated 
Popery  and  open  superstition,  which,  as  it  extirpates  all  re- 
ligious and  civil  supremacies,  so  itself  should  be  extirpated/' 
While  Milton  thus  fell  short  of  an  unlimited  intellectual  toler- 
ation he  yet  furnished  an  immortal  statement  of  reasons  to 
guide  us  to  an  unabridged  freedom  of  utterance,  and  to  the 
invalidating  of  his  own  exception  thereto. 

SPINOZA. 

To  this  same  period  belong  the  writings  of  Spinoza.  As 
is  to  be  expected,  his  viewpoint  is  different  from  the  others 
of  his  time. 

He  concludes :  "We  have  shown  already  that  no  man's  mind 
can  possibly  lie  wholly  at  the  disposition  of  another,  for  no 
one  can  willingly  transfer  his  natural  right  of  free  reason  and 
free  judgment,  or  be  compelled  to  do  so.  For  this  reason  the 
government  which  attempts  to  control  minds  is  accounted 
tyrannical,  and  it  is  considered  an  abuse  of  sovereignty,  and 
a  usurption  of  the  rights  of  subjects,  to  seek  to  prescribe  what 
shall  be  accepted  as  true,  or  rejected  as  false,  or  what  opinions 
shall  actuate  men  in  their  worship  of  God.  All  these  questions 
fall  within  a  man's  natural  right,  which  he  cannot  abdicate 
even  with  his  own  consent.  *  *  *  *  The  individual  justly  cedes 
the  right  of  free  action,  though  not  of  free  reason  and  judg- 
ment. No  one  can  act  against  the  authorities  without  danger 
to  the  State,  though  his  feelings  and  judgment  be  at  variance 
therewith.  He  may  even  speak  against  them,  provided  that 
he  does  so  from  rational  conviction,  not  from  fraud,  anger, 

222 


INTERPRETATION   OF   "FREEDOM   OF  SPEECH   AND  OF  THE  PRESS/' 

or  hatred,  and  provided  that  he  does  not  attempt  to  introduce 
any  change  on  his  private  authority.  *  *  *  *  Thus  we  see  how 
an  individual  may  declare  and  teach  what  he  believes,  without 
injury  to  the  authority  of  his  rulers,  or  to  the  public  peace; 
namely,  by  leaving  in  their  hands  the  entire  power  of  legis- 
lation as  it  affects  action;  and  by  doing  nothing  against  their 
laws  though  he  be  compelled  often  to  act  in  contradiction  to 
what  he  believes,  and  openly  feels  to  be  best.  From  the  funda- 
mental notions  of  a  State,  we  have  discovered  how  a  man 
may  exercise  free  judgment  without  detriment  to  the  supreme 
power ;  from  the  same  premises  we  can  no  less  easily  determine 
what  opinions  would  be  seditious.  Evidently  those  which  by 
their  very  nature  nullify  the  compact  by  which  the  right  of  free 
action  is  ceded.  *  *  *  * 

"If  we  hold  to  the  principle  that  a  man's  loyalty  to  the 
State  should  be  judged,  like  his  loyalty  to  God,  from  his  actions 
only — namely  from  his  charity  towards  his  neighbors — we 
cannot  doubt  that  the  best  government  will  allow  freedom  of 
philosophical  speculation,  no  less  than  of  religious  belief.  I 
confess  that  from  such  freedom  inconveniences  may  sometimes 
arise,  but  was  any  question  ever  settled  so  wisely  that  no 
abuses  could  possibly  spring  therefrom?  He  who  seeks  to 
regulate  everything  by  law  is  more  likely  to  arouse  vices  than 
to  reform  them." 

From  these  quotations  it  appears  that  Spinoza  did  not 
believe  in  an  unabridged  freedom  of  utterance.  His  belief 
in  the  psychologic  crime  of  a  mere  verbal  treason,  though 
limited  within  unusually  narrow  range,  followed  logically  from 
his  erroneous  conception  of  the  sphere  of  government.  Of  this 
he  said :  "The  rights  of  the  sovereign  are  limited  by  his  power." 
Since  in  his  theory  of  government  sovereign  rights  arise  out 
of  a  cession  of  freedom  of  action  by  the  citizen,  the  opinion 
which  nullified  that  hypothetical  compact  could  be  called 
treason  so  long  as  the  sovereign  had  the  power  to  suppress  it 
as  such.  It  is  quite  probable,  and  at  least  consistent  with  his 
theory,  that  this  exception  may  have  been  made  by  Spinoza 
as  a  condition  of  securing  tolerance  for  the  rest  of  the  argu- 
ment in  favor  of  free  speech. 

However  that  may  be,  as  Spinoza  repudiated  the  exception 
to  unabridged  freedom  of  utterance  reserved  by  Milton,  so 
the  latter  annihilated  the  one  exception  made  by  Spinoza.  The 
premises  of  each  exception  were  specifically  repudiated  by  the 

223 


American  Declaration  of  Independence  and  American  Consti- 
tutions, and  hence  these  exceptions  to  unabridged  liberty  of 
utterance  also  must  fall.  However,  the  matter  that  I  now  wish 
specially  to  emphasize  is  this :  The  very  nature  of  these  argu- 
ments for  larger  freedom  is  such  as  utterly  to  destroy  our 
judical  assumption  that  the  friends  of  unabridged  freedom 
of  utterance,  who  framed  our  Constitutional  Guarantees, 
meant  only  to  provide  for  ex  post  facto  punishment  as  a 
substitute  for  previous  restraint. 

MONTESQUIEU. 

Some  years  after  the  death  of  Milton  came  the  birth  of 
Montesquieu,  who  "commanded  the  future  from  his  study 
more  than  Napoleon  from  his  throne,"  and  whose  book  on 
"The  Spirit  of  the  Laws"  "probably  has  done  as  much  to 
remodel  the  world  as  any  product  of  the  eighteenth  century, 
which  burned  so  many  forests  and  sowed  so  many  fields." 

In  the  opinion  of  Justice  O.  W.  Holmes,  "Montesquieu  had 
a  possibly  exaggerated  belief  in  the  power  of  legislation," 
which  alone  would  not  predispose  him  against  censorship. 
The  frequent  reference  to  him  in  The  Federalist  and  other 
discussions  of  the  revolutionary  period,  as  well  as  our  Constitu- 
tions themselves,  all  show  how  the  thought  provoked  by  his 
book  helped  to  shape  our  Institutions.  This  makes  it  all  the 
more  important  to  ascertain  his  views  upon  the  province  of 
the  State  in  relation  to  the  liberty  of  speech  and  press,  because 
of  their  quite  direct  bearing  upon  the  historical  interpretation 
of  our  Constitution. 

On  the  subject  of  religion,  he  emphasizes  the  essential 
difference  between  human  and  divine  laws,  and  argues  reserv- 
edly for  general  toleration  of  all  religion,  and  concludes: 
"When  the  legislator  has  believed  it  a  duty  to  permit  the 
exercise  of  many  religions  it  is  necessary  that  he  should  enforce 
also  a  toleration  among  these  religions  themselves.  *  *  *  * 
Penal  laws  ought  to  be  avoided  in  respect  to  religion." 

In  the  matter  of  verbal  treason,  Montesquieu  seems  very 
exact  in  his  statements  and  comprehensive  in  his  thought. 
Only  a  few  lines  will  need  quoting.  He  says :  "Nothing 
renders  the  crime  of  high  treason  more  arbitrary  than  declaring 
people  guilty  of  it  of  indiscreet  speeches.  *  *  *  *  Words  do 
not  constitute  an  overt  act ;  they  remain  only  an  idea.  When 
considered  by  themselves,  they  have  generally  no  determinate 

224 


INTERPRETATION   OF  "FREEDOM   OF  SPEECH   AND  OF  THE  PRESS/' 

signification,  for  this  depends  on  the  tone  in  which  they  are 
uttered.  *  *  *  *  Since  there  can  be  nothing  so  equivocal  and 
ambiguous  as  all  this,  how  is  it  possible  to  convert  it  into  a 
crime  of  high  treason?  Wherever  this  law  is  established,  there 
is  an  end  not  only  of  liberty,  but  even  of  its  very  shadow.  *  *  *  * 
"Overt  acts  do  not  happen  every  day ;  they  are  exposed  to 
the  naked  eye  of  the  public,  and  a  false  charge  with  regard 
to  matters  of  fact  may  be  easily  detected.  Words  carried 
into  action  assume  the  nature  of  that  action.  Thus  a  man  who 
goes  into  a  public  market-place  to  incite  the  subject  to  revolt 
incurs  the  guilt  of  high  treason,  because  the  words  are  joined 
to  the  action,  and  partake  of  its  nature.  It  is  not  the  words 
that  are  punished  but  an  action  in  which  words  are  employed. 
They  do  not  become  criminal  but  when  they  are  annexed  to 
a  criminal  action;  everything  is  confounded  if  words  are  con- 
strued into  capital  crime,  instead  of  considering  them  only  as 
a  mark  of  that  crime."" 

In  this  evolution  to  a  clearer  conception  of  the  issues  and 
the  more  exact  statement  of  the  claims  of  contending  parties, 
we  have  now  reached  the  place  where  unabridged  intellectual 
liberty  is  defined  by  excluding  from  the  category  of  crime 
every  offense  founded  upon  speech,  merely  as  such. 

BLACKSTONE  AND  HIS  CRITICS. 

Blackstone  was  the  victim  of  most  of  the  popular  super- 
stitions of  his  time,  from  witchcraft  down.  Of  course  he 
indorsed  the  current  theory  of  government  and  consequently 
the  current  abridgments  of  freedom  of  speech  and  press.  He 
had  no  desire  or  intention  to  vindicate  man's  natural  right 
to  such  liberties  unabridged,  but  approved  and  made  declara- 
tions of  the  laws  in  operation,  as  he  found  them.  Thus  he 
wrote :  "Everything  is  now  as  it  should  be  with  respect  to  the 
spiritual  cognizance,  and  spirtual  punishment  of  heresy;  unless 
perhaps  that  the  crime  ought  to  be  more  strictly  defined,  and 
no  persecution  permitted,  even  in  the  ecclesiastical  courts,  till 
the  tenets  in  question  are  by  proper  authority  previous  declared 
to  be  heretical.  Under  these  restrictions,  it  seems  necessary 
for  the  support  of  the  national  religion  that  the  officers  of 
the  church  should  have  power  to  censure  heretics,  yet  not  to 
harrass  with  temporal  penalties,  much  less  to  exterminate  or 
destroy  them."" 

These   spiritual   censures   and   excommunication   involved 

"Vol.  I.,  p.  233,  Aldine  Edition. 
"Vol.  4  Commentaries,  p.  49. 

225 


OBSCENE   LITERATURE    AND   CONSTITUTIONAL    LAW. 

indirect  penalties,  such  as  incapacity  for  "suing  an  action, 
being  witnesses,  making  a  will,  receiving  a  legacy,"  etc.,  and 
these  indirect  consequences  it  would  seem  that  Blackstone 
approved. 

Again  he  writes:  "The  [some  not  unabridged]  liberty  of 
the  press  is  indeed  essential  to  the  nature  of  a  free  state;  but 
this  consists  in  laying  no  previous  restraints  upon  publications, 
and  not  in  freedom  from  censure  for  criminal  matter  when 
published.  *  *  *  *  To  subject  the  press  to  the  restrictive  power 
of  a  licenser,  as  was  formerly  done,  *  *  *  *  is  to  subject  all 
freedom  of  sentiment  to  the  prejudices  of  one  man,  and  make 
him  the  arbitrary  and  infallible  judge  of  all  controverted  points 
in  learning,  religion,  and  government.  But  to  punish,  as  the 
law  does  at  present,  any  dangerous  or  offensive  writings  which, 
when  published,  shall  on  a  fair  and  unpartial  trial  be  adjudged 
of  a  pernicious  tendency,  is  necessary  for  the  preservation  of 
peace  and  good  order,  of  government  and  religion,  the  only 
solid  foundations  of  civil  liberty."18 

It  should  be  apparent  from  the  mere  reading  that  Black- 
stone  was  defending  and  describing  only  such  limited  liberty 
by  permission  as  was  then  enjoyed  in  England,  and  never  in- 
tended either  to  define  or  defend  unabridged  freedom  of  dis- 
cussion, as  that  was  contended  for  by  his  opponents,  whose 
views,  and  not  Blackstone's,  were  adopted  into  our  Constitu- 
tions. For  this  reason,  one  may  well  be  surprised  to  find  the 
foregoing  statement  from  Blackstone  quoted  by  American 
courts  as  an  authority  on  the  meaning  of  unabridged  freedom 
of  utterance,  which  he  never  mentions. 

One  of  Blackstone's  critics,  whose  book  went  through  more 
than  one  edition  and  of  whom  it  is  said,19  "he  induced  the 
learned  commentator  [Blackstone]  to  alter  some  positions  in 
the  subsequent  edition  of  his  valuable  work,"  had  this  to  say 
as  to  the  meaning  of  unabridged  freedom  of  speech : 

"For,  though  calumny  and  slander,  when  affecting  our 
fellow  men,  are  punishable  by  law ;  for  this  plain  reason, 
because  an  injury  is  done,  and  a  damage  sustained,  and  a  repara- 
tion therefore  due  to  the  injured  party;  yet,  this  reason  cannot 
hold  where  God  and  the  Redeemer  are  concerned;  who  can 
sustain  no  injury  from  low  malice  and  scurrilous  invective; 
nor  can  any  reparation  be  made  to  them  by  temporal  penalties ; 
for  these  can  work  no  conviction  or  repentance  in  the  mind  of 
the  offender;  and  if  he  continue  impenitent  and  incorrigible, 

18Vol.  4  Blackstone's  Commentaries,  p.  151. 
19Allibone's   "Dictionary  of   Authors." 

226 


INTERPRETATION  OF  "FREEDOM  OF  SPEECH  AND  OF  THE  PRESS." 

he  will  receive  his  condign  punishment  in  the  day  of  final 
retribution.  Affronting  Christianity,  therefore,  does  not  come 
under  the  magistrate's  cognizance,  in  this  particular  view,  as 
it  implies  an  offense  against  God  and  Christ."20  Here  is  again 
a  clear  recognition  and  plain  statement  which,  like  Montes- 
quieu's, demands  that  actual  and  material  injury  shall  be  the 
basis  of  prosecution  and  not  mere  speculation  about  psychologic 
tendencies. 

MANSFIELD   AND    KENYON. 

Some  of  our  courts,  in  addition  to  Blackstone,  cite  Lords 
Mansfield  and  Kenyon,  as  authorities  on  the  meaning  of  un- 
abridged freedom  of  utterance  as  though  their  views  had  been 
adopted  into  our  Constitutions.  Concerning  these  opinions, 
Sir  James  Fitz  James  Stephens  (after  quoting  the  differing 
definitions  of  Lords  Mansfield  and  Kenyon  as  showing  what 
was  the  official  conception  of  freedom  of  the  press)  says: 
"Each  definition  was  in  a  legal  point  of  view  complete  and 
accurate,  but  what  the  public  at  large  understood  by  the  ex- 
pression was  something  altogether  different — namely  the  right 
of  unrestricted  discussion  of  public  affairs."33 

In  other  words,  the  judicial  conception  of  free  speech  was 
an  abridged  free  speech,  and  the  popular  demand  was  for  an 
unabridged  free  speech.  It  should  need  no  argument  to  prove 
that  the  latter,  and  not  the  former,  was  intended  to  be  adopted 
into  American  Constitutions,  and  to  me  it  is  difficult  to  account 
for  the  contrary  opinion,  often  expressed  by  our  courts,  which 
quite  uniformly  ignore  even  the  existence  of  the  pre-revolu- 
tionary  contention  against  the  English  official  conception  as 
expressed  by  the  Star  Chamber,  the  English  Parliament,  Black- 
stone,  Mansfield,  or  Kenyon. 

BISHOP  HORSLEY,  REV.  ROBERT  HALL,  AND  THOMAS  JEFFERSON. 

The  issue  between  "freedom  of  the  press"  in  the  official 
English  sense,  on  the  one  side,  and  unabridged  freedom  of 
utterance  on  the  other,  was  made  clear  in  another  English 
controversy  following  so  closely  upon  the  heels  of  our  adoption 
of  the  first  amendment  as  to  be  fairly  considered  an  English 
aftermath  of  that  agitation  and  of  the  American  Revolution. 

Bishop  Horsley,  on  January  30,  1793,  delivered  a  sermon 
before  the  House  of  Lords,  wherein  he  indulged  in  a  severe 
censure  of  that  "Freedom  of  dispute"  on  matters  of  "such 

"Furneaux's  "Letters  on  Toleration,"  pp.  70-71,   Second  Edition. 
"Vol.  2  "Grim.  Law  of  Eng.,"  p.  349. 

227 


OBSCENE   LITERATURE   AND  CONSTITUTIONAL   LAW. 

high  importance  as  the  origin  of  government  and  the  authority 
of  sovereigns,"  in  which  he  laments  that  it  has  been  the  "folly 
of  this  country  for  several  years  past"  to  indulge.  Of  the 
divine  right  of  Kings  he  declared:  "It  is  a  right  which  in  no 
country  can  be  denied,  without  the  highest  of  all  treason.  The 
denial  of  it  were  treason  against  the  paramount  authority  of 
God." 

These  premises  had  recently  been  repudiated  by  our 
Declaration  of  Independence,  by  the  American  Constitutions, 
and  by  the  friends  of  unabridged  freedom  of  utterance  every- 
where. One  of  the  conspicuous  critics  of  Bishop  Horsley 
was  the  Rev.  Robert  Hall.  In  arguing  against  the  rightfulness 
of  punishing  mere  psychologic  crimes,  he  laid  down  tne  limits 
of  governmental  action  which  must  be  adhered  to  if  freedom 
of  speech  is  to  remain  an  unabridged  right,  instead  of  mere 
limited  liberty  by  permission.  He  said:  "The  law  hath  amply 
provided  against  overt  acts  of  sedition  and  disorder,  and  to 
suppress  mere  opinions  by  any  other  method  than  reasoning 
and  argument  is  the  hight  of  tyranny.  Freedom  of  thought 
being  intimately  connected  with  the  happiness  and  dignity  of 
man  in  every  stage  of  his  being,  is  of  so  much  more  importance 
than  the  preservation  of  any  Constitution,  that  to  infringe  the 
former  under  pretense  of  supporting  the  latter,  is  to  sacrifice 
the  means  to  the  end."22 

In  his  discourse,  this  Reverend  author  often  emphasizes 
the  difference  between  ideas  and  overt  acts  and  makes  plain 
over  and  over  that  in  his  view  actual  injury  should  be  the 
criteria  of  guilt,  and  not  mere  apprehension  as  to  a  psychologic 
tendency.  Our  constitutional  definition  of  Treason  and  the 
guarantees  of  the  right  to  carry  arms,  of  "due  process  of  law," 
and  of  unabridged  freedom  of  utterance,  show  that  it  was 
such  views  as  Milton  argued  for,  and  as  Montesquieu  and  the 
Rev.  Robert  Hall  expressed,  and  not  the  views  of  Blackstone, 
Mansfield,  Kenyon,  or  Bishop  Horsley,  that  our  Constitutions 
sought  effectually  to  perpetuate. 

Both  before  and  after  these  utterances  by  the  Rev.  Robert 
Hall  there  was  most  eminent  American  authority  for  the  same 
interpretation  of  the  meaning  of  a  "free  press."  Thomas 
Jefferson  is  popularly  supposed  to  have  had  much  to  do  with 
framing  the  Declaration  of  Independence  and  shaping  our 
American  institutions.  He  was  a  dominant  figure  in  Virginia 
politics  for  many  years.  Those  who  have  familiarized  them- 

M"An  Apology  for  Freedom  of  the  Press,"  p.   18. 

228 


INTERPRETATION    OF      FREEDOM   OF  SPEECH   AND  OF  THE  PRESS. 

selves  with  the  religious  views  of  Jefferson,13  will  not  doubt 
that  he  encouraged  the  passage  of  the  Act  of  the  State  of 
Virginia  establishing  religious  freedom.  Although  drafted 
with  a  view  only  to  theological  subjects,  it  contains  a  summary 
of  incontrovertible  reasoning  in  favor  of  the  general  liberty  of 
inquiry  and  a  clear  statement  as  to  where  the  jurisdiction  of  the 
state  rightfully  may  be  invoked  without  abridging  intellectual 
liberty.  The  Virginia  enactment  says:  "To  suffer  the  Civil 
Magistrate  to  intrude  his  power  into  the  field  of  Opinion,  or 
to  restrain  the  profession  or  propagation  of  principles  on  sup- 
position of  their  ill  tendency,  is  a  dangerous  fallacy,  which  at 
once  destroys  all  liberty,  because  he,  being  of  course  judge  of 
that  tendency,  will  make  his  opinions  the  rule  of  judgment, 
and  approve  or  condemn  the  sentiments  of  others  only  as  they 
shall  square  with  or  differ  from  his  own.  It  is  time  enough 
for  the  rightful  purposes  of  Civil  Government  for  its  officers 
to  interfere  when  principles  break  out  into  overt  acts  against 
peace  and  good  order."  "* 

The  Virginia  declaration  was  made  in  1786,  several  years 
before  the  adoption  of  the  first  amendment  to  the  Federal 
Constitution.  The  Virginia  enactment  makes  it  clear  that  in 
their  opinion  the  State  has  no  rightful  authority  over  opinion 
of  any  sort,  and  should  not  be  suffered  to  interfere  until 
ACTUAL  injury  has  resulted.  It  was  that  conception  of 
"freedom  of  the  press"  which  America  adopted,  and  not  the 
English  tyrants'  conception,  to  which  it  was  opposed,  and 
which  originated  in  the  odious  Star  Chamber,  found  a  palatable 
justification  in  Blackstone  and  the  English  Judicial  decisions, 
and  an  official  re-echo  in  American  Courts,  engaged  in  ex- 
plaining away  our  constitutional  guarantee  for  an  unabridged 
freedom  of  utterance. 

When  the  Federalist  party  was  defeated  because  of  its 
enactment  of  the  Alien  and  Sedition  Law,  and  Thomas  Jef- 
ferson became  President  of  the  United  States,  he  proceeded 
to  pardon  every  man  who  had  been  convicted  under  this 
infamous  statute.  That  the  penalized  utterances  tended  to 
sedition  made  no  difference  to  him,  which  indicates  that  he  too 
indorsed  the  views  of  Montesquieu,  the  Rev.  Robert  Hall,  and 
the  quoted  enactment  of  the  Virginia  Legislature,  as  being 
the  correct  interpretation  of  the  words  "unabridged  freedom 
of  speech  and  of  the  press."  Jefferson's  own  statement  as  to 
his  conduct  is  as  follows : 

"See,   "Six  Historic   Americans." 

"Requoted  from  Wortman's,  "Liberty  of  the  Press,"  p.  173. 

229 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

"I  discharged  every  person  under  punishment  or  prosecution 
under  the  sedition  law,  because  I  considered  and  now  consider 
that  law  to  be  a  nullity,  as  absolute  and  as  palpable  as  if 
Congress  had  ordered  us  to  fall  down  and  worship  a  golden 
image ;  and  that  it  was  as  much  my  duty  to  arrest  its  progress 
in  every  stage  as  it  would  have  been  to  have  rescued  from  the 
fiery  furnace  those  who  should  have  been  cast  into  it  for 
refusing  to  worship  the  image.  It  was  accordingly  done  in 
every  instance,  without  asking  what  the  offenders  had  done,  or 
against  whom  they  had  offended,  but  whether  the  pains  they 
were  suffering  were  inflicted  under  the  pretended  sedition  law. 
It  was  certainly  possible  that  my  motives  in  contributing  to 
the  relief  of  Callandar,  and  in  liberating  sufferers  under  the 
sedition  law,  might  have  been  to  protect,  reward,  and  encourage 
slander;  but  they  may  also  have  been  those  which  inspire 
odinary  charities  to  objects  of  distress,  meritorious  or  not — or, 
the  obligation  of  an  oath  'to  protect  the  Constitution'  violated 
by  an  authorized  act  of  Congress."21 

This  action  on  the  part  of  President  Jefferson  was  con- 
sistent with  the  issue  upon  which  he  was  elected,  and  was 
required  by  his  own  conception  of  what  was  meant  by  an 
unabridged  "Freedom  of  Speech  and  of  the  Press"  as  applied 
to  verbal  treason.  His  views  are  thus  expressed  in  his  first 
inaugural  address:  "If  there  be  any  among  us  who  would 
wish  to  dissolve  this  Union  or  to  change  its  republican  form, 
let  them  stand  undisturbed  as  monuments  of  the  safety  with 
which  error  of  opinion  may  be  tolerated  where  reason  is  left 
free  to  combat  it." 

These  discussions  again  proclaim  the  historic  view  that 
unabridged  freedom  of  utterance  means  that  every  man  may 
say  with  impunity  whatever  he  pleases,  being  held  responsible 
and  punishable  only  for  actual  resultant  injury,  that  being  the 
only  abuse  of  such  freedom  which  can  be  penalized. 

TAXES  ON    KNOWLEDGE. 

Another  form  of  impairing  natural  intellectual  opportunity, 
and  therefore  an  abridgment  of  freedom  of  the  press,  was 
taxes  upon  knowledge.  In  America,  where  to  a  very  large 
extent  we  have  Government  by  newspapers,  it  seems  unlikely 
that  such  taxes  will  ever  again  become  a  subject  of  controversy. 
However,  we  must  briefly  consider  the  matter  as  an  historical 

"See,    4    Jefferson's    Complete    Works,    556,    quoted    in    Booth's   v.    Rycroft, 
3  Wisconsin  183. 

230 


INTERPRETATION   OF      FREEDOM   OF  SPEECH   AND  OF  THE  PRESS. 

issue  so  that  our  final  generalization  as  to  unabridged  freedom 
of  the  press  may  negative  also  this  form  of  abridgment. 

George  Jacob  Holyoake  has  briefly  described  the  conditions 
against  which  he,  and  other  friends  of  intellectual  freedom 
before  him,  waged  such  strenuous  battle.  These  are  his  words: 
"Yet  every  newspaper  proprietor  was  formerly  treated  as  a 
blasphemer  and  a  writer  of  sedition,  and  compelled  to  give 
substantial  securities  against  the  exercise  of  his  infamous 
tendencies;  every  paper-maker  was  regarded  as  a  thief,  and 
the  officers  of  the  Excise  dogged  every  step  of  his  business 
with  hampering,  exacting,  and  humiliating  suspicion.  Every 
reader  found  with  an  unstamped  paper  in  his  possession  was 
liable  to  a  fine  of  £20.  When  the  writer  of  this  published 
the  'War  Chronicles'  and  'War  Fly  Sheets,'  the  Inland  Revenue 
Office  bought  six  copies  as  soon  as  each  number  was  out ;  thus 
he  incurred  fines  of  £120  before  breakfast,  and  when  the 
last  warrant  was  issued  against  him  by  the  Court  of  Exchequer 
he  was  indebted  to  the  Crown  £600,000.  Besides,  he  had 
issued  an  average  of  2,000  copies  of  The  Rcasoner  for  twelve 
years,  incurring  fines  of  £40,000  a  week,  which  amounted  to 
a  considerable  sum  in  twelve  years.  He  who  published  a 
paper,  containing  news,  without  a  stamp,  was  also  liable  to 
have  all  his  presses  broken  up,  all  his  stock  confiscated,  him- 
self, and  all  persons  in  his  house,  imprisoned,  as  had  been  done 
again  and  again  to  others  within  the  writer's  knowledge. 
Neither  cheap  newspapers  nor  cheap  books  could  exist  while 
these  perils  were  possible." 

In  his  "History  of  the  Taxes  on  Knowledge,"  Collet  in- 
forms us  that  "The  History  of  the  Taxes  upon  Knowledge 
begins  with  their  imposition  (1711)  in  the  reign  of  Queen 
Anne.  The  battle  against  the  Press  had,  indeed,  begun  before 
that  date."  The  year  1855  marked  the  final  repeal  of  the 
last  of  these  English  stamp  acts,  and  those  requiring  bonds, 
etc.,  from  publishers.  Those  who  are  interested  in  this  par- 
ticular battle  for  larger  freedom  of  the  press  are  referred  to 
Mr.  Collet's  interesting  account.28  In  all  these  discussions,  it 
is  apparent  that  the  main  purpose  was  not  to  favor  one  system 
of  raising  revenue  as  against  some  other  system,  but  to  in- 
crease the  intellectual  opportunities  of  all,  by  removing  all 
State-created  impediments  to  the  greatest  natural  freedom 
for  the  interchange  of  ideas. 

•'"Taxes  on  Knowledge,  the  story  of  their  Origin  and  Repeal,"  Lend.,  1899; 
see  also  Patterson  on  "Liberty  of  Press  and   Speech,  '  p.   57. 

231 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 
THE   CENSORSHIP  OF   MAILS. 

We  next  consider  the  method  of  creating  inequalities  in 
intellectual  opportunities,  and  of  abridging  them,  by  means  of 
a  State-created  postal  censorship,  which  is  fast  becoming  an 
important  issue  in  the  contest  for  intellectual  freedom  in 
America.  The  American  postal  censorship  over  mail  matter 
began  in  1873,  when  a  law  was  passed,  without  debate,  making 
"obscene"  matter  unmailable.  I  am  informed  that  the  original 
draft  of  this  bill  included  "blasphemy"  in  the  unmailable  list, 
thus  again  emphasizing  the  origin  in  religious  intolerance,  and 
pointing  to  the  ultimate  purpose  of  those  who  are  so  per- 
sistently advocating  and  securing  extensions  of  our  postal 
censorship.  This  censorship  has  already  been  extended,  so 
that  now  even  political  literatue,  which  in  European  monarchies 
is  spread  without  hindrance,  has  been  excluded  from  Amer- 
ican mails  and  penalized.  The  statutes  heretofore  have  only 
provided  ex  post  facto  punishment  for  use  of  the  mails ;  they 
did  not  authorize  the  postal  authorities  to  prevent  the  trans- 
mission of  prohibited  matter.  In  several  Congresses,  the 
Postal  Department  asked  an  amendment  to  the  laws  such  as 
would  give  the  postmaster  power  to  refuse  transmission  to 
forbidden  matter.  The  amendment  never  was  passed.  Not 
abashed  by  the  refusal  of  the  Congress  to  confer  the  power, 
the  authorities  proceeded  to  usurp  it,  under  the  usual  guise 
of  a  new  "construction"  of  existing  statutes.  This  usurped 
power,  having  been  calmly  acquiesced  in  by  the  public,  soon 
received  judicial  confirmation  and  gradually  has  been  extended, 
so  that  it  now  assumes  to  override  the  judical  department  by 
excluding  from  the  mails  publications  which  the  courts  have 
decided  are  mailable,  and  has  excluded  matter  without  the 
warrant  of  any  statute,  relying  upon  the  absence  of  a  remedy 
for  the  afflicted  persons. 

Under  our  modern  conditions  of  living,  with  their  cheap 
printing  and  postal  facilities,  to  be  denied  the  use  of  the  mails 
for  the  spread  of  one's  ideas  creates  a  relatively  greater  in- 
equality and  abridgment  of  intellectual  opportunity  than  ever 
was  created  by  any  prior  form  of  censorship.  Since  private 
competition  with  our  public  mail  service  is  prohibited  by  law, 
and  since  in  these  times  of  a  cheap  periodical  press  no  one  can 
hope  ever  to  attain  a  favorable  public  opinion,  in  competition 
with  his  intellectual  opponents,  except  by  publication  through 


232 


INTERPRETATION   OF      FREEDOM   OF  SPEECH   AND  OF  THE  PRESS. 

the  mails,  therefore  it  follows  that  a  postal  censorship  is  the 
most  effective  possible  abridgment  of  freedom  of  the  press. 
Moreover,  since  the  postal  authorities  now  exercise  a  usurped 
censorhip  over  postal  matter  prior  to  publication  through  the 
mails,  we  have  quite  effectively,  though  unconsciously,  re- 
establihed  in  some  fields  of  thought  a  "previoiis  censorship," 
substantially  like  that  against  which  Milton  wrote  nearly  300 
years  ago.  If  this  previous  censorship  is  upheld,  in  spite  of  our 
Constitutions  and  judicial  dictums  against  the  legal  possibility 
of  a  "previous  censorship,"  then  its  spread  into  other,  and 
finally  all,  fields  of  thought  is  only  a  matter  of  time.  Under 
present  conditions,  the  difference  between  a  censorship  previous 
to  printing  and  one  after  printing  but  previous  to  publication 
by  mail,  is  one  of  no  practical  import,  because  a  book  that 
cannot  get  publicity  by  mail  might  as  well  never  be  printed, 
since  without  facilities  for  distribution  by  post,  interstate  com- 
merce, or  private  competitors  of  the  postal  system,  the  securing 
of  readers  is  practically  impossible.  Furthermore,  a  censorship 
after  printing,  and  before  publication  by  mail,  is  worse  than 
one  before  printing,  because  it  inflicts  the  needless  loss  of  the 
cost  of  printing. 

The  infamous  Licensing  Act  of  England,  against  which 
Milton  wrote,  was  passed  September  20,  1649,  and  provided, 
among  its  pernicious  abridgments  of  freedom  of  the  press,  that 
"no  person  whatever  should  presume  to  send  by  the  post, 
carriers,  or  otherwise,  or  endeavor  to  dispense,  any  unlicensed 
book,"etc.,  on  penalty  of  forfeiture,  fine,and  imprisonment.  As 
if  to  add  insult  to  injury,  every  printer  was  required  to  give 
a  bond  to  "The  Keepers  of  the  Liberties  of  England,"  to  insure 
against  the  violation  of  the  licensing  act.  It  was  precisely  this 
censorship  previous  to  publication  by  mail  against  which  Milton 
wrote  his  "Areopagitica."  Our  courts  have  said  that  the  ab- 
sence of  "such  previous  restraint  as  had  been  practised"  is  the 
one  thing,  at  least,  against  which  our  constitutional  guarantees 
protect  us,  and  yet  in  spite  of  Courts  and  Constitutions  we 
have  for  some  time  acquiesced  in  just  such  a  usurped  postal 
censorship  previous  to  publication  by  mail.  Furthermore,  ow- 
ing to  the  uncertainty  of  the  statutory  criteria  of  mailability, 
this  censorship  previous  to  publication  by  post  is  in  practise 
an  arbitrary  discretion.  So,  then,  we  do  not  even  have  left 
the  one  lonely  element  of  freedom  which  our  courts  too  often 
have  mistaken  for  all  there  is  to  unabridged  freedom  of  the 


233 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL    LAW. 

press.  Even  that  little  "all"  has  disappeared,  and  only  the 
blank  paper  of  our  Constitutional  guarantee  remains.  When 
the  issue  is  squarely  presented,  will  our  courts  confirm  also 
the  destruction  of  this  last  element  of  freedom  of  the  press, 
and  so  vest  Congress  and  our  Federal  bureaucracy  with  all  the 
powers  over  the  press  which  our  Constitution  was  supposed 
to  withhold  ? 

An  English  Barrister-at-law  gives  us  this  brief  account  of 
the  postal  censorship  in  England:  "The  right  of  free  speech 
and  writing  can  scarcely  exist  in  perfection  without  mechanical 
facilities  for  exchanging  letters  and  printed  matter  between 
correspondents.  *  *  *  *  What  is  desired  by  each  and  every 
citizen  is,  that  he  shall  be  entitled  to  send  and  receive  all  com- 
munications which  he  thinks  material  to  his  own  interest,  and 
that  no  third  party  shall  be  allowed  to  tamper  or  interfere  with 
this  operation — so  that  a  message  sent  in  writing  or  print  shall 
be  secret  and  inviolable  from  the  moment  it  is  despatched  till 
the  moment  it  is  delivered.  This  has  for  two  centuries  been 
more  or  less  attained.  The  great  medium  for  this  communica- 
tion between  the  subjects  began  in  1635,  on  a  small  scale,  at 
the  suggestion  of  the  Crown,  but  Parliament  soon  saw  its  im- 
portance, and  in  1649  passed  a  resolution  that  the  office  of  post- 
master ought  to  be  [at]  the  sole  disposal  of  Parliament.  In 
1710  a  statute  laid  down  the  chief  rules,  and  one  of  these, 
continuing  as  it  did  the  first  sketch  of  a  plan  projected  under 
Charles  I.,  forbade  all  other  persons  to  carry  and  deliver  letters 
for  hire.  *  *  *  * 

"It  appears  to  have  been  a  century  ago  the  common 
complaint  of  leading  statesmen  that  their  political  opponents 
made  a  practise  of  opening  their  letters  when  they  had  the 
power.  *  *  *  * 

"In  1822  complaint  was  made  by  a  member  of  Parliament 
that  a  letter  sent  him  by  a  prisoner  had  been  opened.  And, 
though  the  Government  claimed  the  right  to  do  so  for  precau- 
tion, yet  many  urged  that  it  should  be  deemed  a  breach  of 
privilege ;  this  step,  however,  was  not  taken."  Again,  in  1844, 
instances  of  private  letters  being  opened  were  complained  of, 
and  Parliamentary  committees  investigated  the  practise,  and 
found  sufficient  confirmation  of  the  suspicion  that  such  a  prac- 
tise was  not  unfrequent,  especially  in  connection  with  foreign 
refugees."  Sir  R.  Peel  said  that  no  rule  could  be  laid  down 
on  such  a  subject,  and  successive  Secretaries  of  State  of  all 

"6  Parl.   Deb.    (2d),   282,  646. 

M75  Parl.  Deb.   (3)    1264;  76  Ibid.  212,  296. 

234 


parties  had  been  in  the  habit  of  exercising  this  power  at  dis- 
cretion."29 

Thus,  this  great  authority  on  freedom  of  the  press  informs 
us  that,  according  to  the  English  conception  of  it,  the  period  of 
our  revolution  found  it  a  matter  of  constant  complaint  that 
there  was  a  post-office  censorship.  Those  who  thus  complained 
were  the  friends  of  a  larger  intellectual  liberty  and  it  was  their 
view  that  was  adopted  into  our  constitutional  guarantee  for 
the  security  of  papers  against  unreasonable  searches,  and 
against  all  abridgments  of  freedom  of  utterance.  These  two 
clauses  together,  until  judicially  explained  away,  would  seem 
clearly  to  preclude  the  search  of  unsealed  as  well  as  sealed 
mail-matter  for  the  purpose  of  creating  inequalities  of  right 
to  the  public  service,  according  to  whether  the  ideas  transmitted 
are  officially  approved  or  disapproved.  This  is  the  self-evident 
meaning  of  our  Constitution  when  viewed  in  the  light  of  the 
issues  that  were  agitating  the  public  at  the  time  of  its  adoption. 
The  manifest  purpose  was  the  increase  of  intellectual  oppor- 
tunity, even  though  it  protected  such  as  might  be  inclined  to 
sedition,  and  just  as  manifestly  it  was  not  the  purpose  merely 
to  change  a  business  policy  in  relation  to  a  department  of 
government. 

To  show  that  the  advocates  of  unabridged  freedom  of  the 
press  included  a  mail  service  free  from  censorship  as  a  part 
of  their  conception  of  freedom  of  speech,  I  will  content  myself 
with  one  quotation  from  Jeremy  Bentham,  as  confirming  the 
foregoing  historical  interpretation.  After  explaining  that  the 
only  check  to  tyrannous  government  is  "instruction,  excitation, 
and  facility  of  correspondence"  that  "the  national  mind  be 
kept  in  a  state  of  appropriate  preparation ;  a  state  of  prepar- 
ation for  eventual  resistance,"  he  later  continues  thus :  "Neces- 
sary to  instruction — to  excitation — in  a  word  to  a  state  of 
preparation  directed  to  this  purpose  is  (who  does  not  see  it?) 
the  perfectly  unrestrained  communication  of  ideas  on  every 
subject  within  the  field  of  government — [which  includes  the 
discussion  of  sexual  physiology  and  psychology  as  a  founda- 
tion for  sex  ethics,  and  the  latter  even  from  the  viewpoint 
of  the  free-lover  and  polygamist  because  a  democratic  govern- 
ment must  leave  itself  free  to  change  even  its  marriage  laws] 
the  communication,  by  vehicles  of  all  sorts — by  signs  of  all 
sorts ;  signs  to  the  ear — signs  to  the  eye — by  spoken  language — 
by  written,  including  printed,  language — by  the  liberty  of  the 

MRep.  of  Secret  Com.    1845;   Patterson,   "Liberty  of  the  Press,   Speech,  and 
Public  Worship,"  pp.   58-59. 

235 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

tongue,  by  the  liberty  of  the  writing  desk,  by  the  liberty  of 
the  post  office — by  the  liberty  of  the  press."  He  repeats  that 
this  is  necessary,  "not  only  for  instruction,  but  for  excitation" ; 
all  "for  keeping  on  foot  every  facility  for  eventual  resistance."" 
Bentham  then  pointed  to  the  United  States  as  a  place 
where  such  liberties  existed,  but  he  could  not  do  so  now  were 
he  alive.  The  Declaration  of  Independence,  the  constitutional 
guarantees  for  the  right  of  assembly,  due  process  of  law,  the 
right  to  bear  arms,  and  against  searches  and  seizures;  the 
declarations  of  the  conventions  of  several  of  the  States,  the 
constitutional  guarantees  of  unabridged  freedom  of  speech  and 
of  the  press — all  proclaim  the  intention  to  protect  the  right 
of  the  citizen  against  punishment  for  mere  psychologic  crimes, 
to  the  end  that  he  always  may  be  prepared  for  eventual  re- 
sistance, even  of  government  itself.81 

PSYCHOLOGIC  TENDENCY  AS  CRITERION  OF  GUILT. 

Historically  considered,  an  inseparable  part  of  the  conten- 
tion for  a  larger,  or  an  unabridged,  liberty  of  speech  and  of 
the  press  was  the  condemnation  of  that  practise  in  the  prosecu- 
tion for  libels  which  made  the  guilt  of  the  accused  depend  upon 
"the  evils  which  may  be  imaginatively  and  prospectively  at- 
tributed to  the  influence  of  his  opinions."  The  opposition  to 
this  uncertainty  in  the  criteria  of  guilt  was  not  limited  to 
persons  who  believed  in  unabridged  freedom  of  speech,  but 
was  often  very  forcibly  urged  by  those  who  desired  only  a 
little  or  no  enlargement  of  intellectual  opportunity.  Even 
Blackstone  believed  that  the  criteria  of  guilt  for  heresy  and 
seditious  utterances  should  be  made  more  certain. 

The  protest  against  the  uncertainty  of  the  tests  of  crimin- 
ality in  prosecutions  for  seditious  and  blasphemous  utterances 
was  upon  two  distinct  grounds.  The  first  and  most  general 
of  these  was  the  historical  retrospect,  and  was  an  appeal  to 
expediency.  The  argument  ran  thus:  Books  once  condemned 
for  their  supposed  evil  tendencies  are  now  believed  to  have 
been  good  and  useful.  In  making  the  psychologic  tendency 
of  an  utterance  the  test  of  its  criminality,  we  are  again  opening 
the  door  for  a  repetition  of  such  error.  Therefore,  such 
criminal  laws  are  inexpedient  and  should  be  abolished.  The 
second  reason  for  objecting  to  the  tendency-test  in  penalized 
utterances  was  from  the  point  of  view  of  that  larger  demand 
for  liberty  which  was  founded  upon  the  idea  that  no  freeman 

«°Jeremy   Bentham,   "On  Liberty  of  the   Press  and   Public  Discussion." 
"Stevens,   "Sources  of  the  Constitution   of  the  United   States,"  pp.  223-224; 
Blackstone's   Commentaries,  v.   1,  p.   154;   Cooley,   "Constitutional  Law,'  270. 

236 


INTERPRETATION    OF   "FREEDOM   OF  SPEECH   AND  OF  THE  PRESS/^ 

should  be  deprived  of  his  liberty  except  by  lawful  judgment  of 
his  peers,  or  by  the  law  of  the  land.  This  was  predicated  upon 
the  conception  that  every  man  should  in  justice  be  forewarned 
that  his  act  is  penalized.  It  could  not  be  the  law  of  the  land: 
if  it  did  not  impart  that  advance  information,  and  could  not 
accomplish  this  except  an  exact  statement  of  the  criteria  of 
guilt  was  a  part  of  every  criminal  statute.  By  such  means  the 
lovers  of  Liberty  hoped  to  obtain  freedom  under  law  in  contra- 
distinction to  a  mere  liberty  by  permission  under  lawless  despot- 
ism. To  such  persons,  it  was  self-evident  that  a  speculative 
opinion  about  the  psychologic  tendency  of  an  utterance  upon  a 
future,  undescribed,  hypothetical,  reader,  or  hearer,  when  used 
as  a  criterion  of  guilt,  could  be  no  restraint  upon  the  moral 
idiosyncracies,  stupid  bigotry,  unreasoned  hysterical  apprehen- 
sion, personal  interest,  or  even  the  superstitious  malice,  of 
those  charged  with  the  duty  of  determining  whether  or  not 
a  verbal  crime  had  been  committed.  It  was  seen  that  under 
such  circumstances  guilt  must  be  determined  by  ex  post  facto 
standards,  personal  to  the  individuals  passing  judgment.  This, 
it  was  argued,  was  government  according  to  the  lawless 
despotism  of  man,  and  the  friends  of  freedom  demanded  as 
one  of  the  conditions  without  which  there  could  be  no  liberty 
of  speech  or  press,  or  liberty  of  any  sort,  that  the  criteria  .of 
guilt  be  so  certain  that  every  man  should  know  in  advance, 
from  the  very  letter  of  the  law,  by  what  standard  his  conduct 
would  be  adjudged  criminal.  It  goes  without  saying  that  so 
long  as  an  ex  post  facto  judicial  guess  as  to  the  psychologic 
tendency  of  a  speech,  book,  or  picture  is  the  test  of  guilt,  there 
can  be  no  such  thing  as  liberty  under  the  law.  Even  from 
those  to  whom  "free  speech"  meant  a  limited  liberty  by  per- 
mission, there  came  a  protest  against  tyranny,  and  the  demand 
for  the  freedom  of  every  man's  opinion  from  that  arbitrary 
power  for  the  penalizing  of  words  by  standards  of  an  ex 
post  facto  guess  or  pretense  about  "the  evils  which  may 
be  imaginatively  and  prospectively  attributed  to  the  in- 
fluence of  his  opinions." 

As  proof  of  the  assertion  that  a  demand  for  certainty 
in  the  criteria  of  guilt  always  was  a  part  of  the  agitation  for 
more  freedom  of  speech  and  press,  we  need  but  to  point  out 
that  vast  literature  which  was  brought  into  being  against 
constructive  treason  and  seditious  libel.  Erskine's  speeches 
are  replete  with  the  glorification  and  demand  for  such  certainty. 

237 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

Here  it  is  only  necessary  to  call  attention  to  its  existence  as  a 
part  of  the  agitation  for  enlarged  liberty.  The  discussion  of 
the  question  is  better  treated  as  a  subdivision  of  an  argument 
to  support  the  contention  that  "Due  Process  of  Law"  does 
not  obtain  unless  every  criminal  statute  prescribes  the  criteria 
of  guilt  with  mathematical  certainty. 

IN  CONCLUSION. 

This  historical  review  of  the  contentions  which  resulted  in 
the  adoption  of  our  constitutional  guarantees  for  an  unabridged 
freedom  of  speech  and  of  the  press,  is  already  too  long  for 
comfortable  reading,  and  not  long  enough  to  be  anything  like 
an  exhaustive  treatise.  I  believe,  however,  that  it  adequately 
establishes  the  following  propositions: 

I.  The  contention   for  an   UNABRIDGED   freedom  of 
utterance  was  always  founded  upon  a  demand  for  unrestrained 
intellectual  opportunity,  and  never  concerned  itself  primarily 
with  preferences  between  different  methods  of  abridging  that 
freedom. 

II.  It  opposed  all  past  and  existing  restrictions  upon  in- 
tellectual   intercourse,    such    as    licensing   printers  or    books, 
censoring  the  post  or  other  means  of  transmission,  putting 
taxes  upon  knowledge,  and  inflicting  ex  post  facto  punish- 
ments; and  our  Constitutions  not  only  sought  to  prevent  a 
recurrance  of  any  of  these  former  methods  of  abridging  in- 
tellctual  opportunity,   but  the   antecedent  discussion  and  the 
language  used  clearly  express  the  determination  to  preclude 
the    enforcement    of    any    other,    even    theretofore    untried, 
methods  of  curtailing  intellectual  intercourse,  although  again 
claimed  to  be  advocated   for  the   furtherance  of  the  public 
welfare. 

III.  The  demand  for  unabridged   freedom  of  utterance 
always  was  a  demand  for  the  abolition  of  all  mere  psychologic 
crimes  and  all  that  uncertainty  which  attended  them  from  the 
fact  that  the  criteria  of  guilt  were  usually  "the  evils  which 
may  be  imaginatively  and  prospectively  attributed  to  the  in- 
fluence of  one's  opinions";  and  the   co-related  demand  that 
crime  should  always  be  predicated  upon  a  certainty,  such  as 
an  actual  and  material  injury,  or  perhaps  also  the  imminent 
danger  of  such,  according  to  the  known  laws  of  the  physical 
universe. 

238 


INTERPRETATION   OF      FREEDOM   OF  SPEECH   AND  OF  THE  PRESS. 

If  we  generalize  all  these  contentions  for  a  larger  and  an 
unabridged  intellectual  opportunity,  we  shall  have  a  compre- 
hensive statement  of  the  historical  interpretation  of  unabridged 
freedom  of  speech  and  of  the  press,  and  if  the  form  of  state- 
ment is  such  as  to  furnish  us  with  the  criteria  for  determining 
a  breaching  of  the  constitutional  guarantee,  we  shall  have 
a  statement  in  substance  like  that  at  the  beginning  of  this 
chapter. 

If  then  we  wish  to  determine  whether  or  not  any  given 
law  is  violative  of  the  free-press  clause  of  our  constitutions 
we  must  deductively  apply  to  the  law  the  several  tests  stated 
at  the  beginning  of  this  chaper.  Doing  this,  with  reference 
to  our  laws  prohibitive  of  sex-discussion  I  find  them,  in  their 
separate  parts,  to  be  unconstitutional,  under  the  second,  fourth, 
and  fifth,  test  of  constitutionality. 

One  thing  is  certain  as  death:  Nobody  intended  that  our 
constitutions  should  increase  the  governmental  authority  to 
penalize  the  transmission  of  ideas.  If  it  shall  be  held  that 
the  constitutions  were  not  designed  to  enlarge  intellectual 
opportunity,  as  has  been  hereinbefore  contended,  then  the 
only  alterative  is  the  proposition  that  the  constitutional  in- 
hibition against  abridging  freedom  of  utterance  prohibits  only 
such  legislation  as  restricts  it  beyond  then  existing  abridg- 
ments. In  Chapter  III.  it  has  been  shown  that  under  the 
common-law,  as  it  obtained  in  the  American  colonies,  ''obscene" 
literature  was  never  penalized  merely  on  account  of  its 
"obscenity."  So  then  even  under  this  anti-historical  and 
most  narrow  interpretation,  the  statutes  now  under  consider- 
ation are  unconstitutional  because  they  abridge  freedom  of 
utterance  beyond  the  existing  restrictions  of  colonial  common- 
law. 


239 


CHAPTER  XII. 

SCIENCE   versus   JUDICIAL   DICTUM. 

A  STATEMENT  OF  NOVEL  CONTENTIONS  AND 

A  PLEA  FOR  OPEN-MINDEDNESS.* 

The  occasion  for  this  discussion  arises  primarily  from  the 
fact  that  when  "obscene"  literature  and  art  were  penalized, 
none  of  the  statutes  prescribed  any  test  by  which  to  determine 
the  dividing  line  between  that  degree  of  obscenity  which  is 
criminal  and  that  which  is  only  a  matter  of  bad  taste,  and 
non-criminal.  In  harmony  with  the  pre-dominant  opinion  of 
that  time,  legislatures  assumed,  and  courts  decreed,  that  all 
humanity  have  an  innate,  and  uniform,  sense  of  modesty  and 
decency,  by  which  we  may  acquire  a  direct  sense-perception 
of  the  "obscene"  qualkies  of  a  book  or  picture.  If  this  as- 
sumption is  true,  the  judicial  superstructure  is  impregnable. 

If,  on  the  other  hand,  that  assumption  is  untrue,  and  our 
sense  of  decency,  obscenity,  etc.,  is  a  matter  of  education  and 
experience,  or  is  determined  by  each  according  to  his  personal 
sex-sensitiveness,  or  his  emotional  and  ideational  associations ; 
determined  by  personal  habits  and  moral  idiosyncrasies,  and 
is  variable  as  these  factors  are  variable ;  or  if  it  shall  develop 
that  the  only  elements  of  unification  generalized  in  the  word 
"obscene"  are  wholly  subjective  to  the  Judge  or  Juror,  or 
other  person  passing  judgment,  and  not  inherent  in  the  book 
itself,  then  it  might  follow  that  all  these  laws  are  a  nullity  for 
want  of  a  statutory  definition  of  the  crime,  for  while  ignorance 
of  the  existence  of  a  law  can  excuse  no  one,  yet  ignorance 
of  the  meaning  of  an  undefinable  criminal  law  must  excuse 
everybody. 

First  we  will  exhibit  the  judicial  dictum  that  the  limits 
and  test  of  "obscenity"  are  a  matter  of  common  knowledge 
and  therefore  need  no  statutory  definition.  This  will  be  fol- 
lowed by  the  judicial  statement  of  reasons  for  believing  in  an 
innate  sense  of  the  obscene  and  of  the  modest.  These  may  be 

*   Revised  from   The  Alienist  and  Neurologist. 

240 


SCIENCE    VERSUS    JUDICIAL    DICTUM. 

contrasted  with  the  contrary  conclusions  of  the  scientist.  The 
issues  thus  formed  will  be  followed  by  a  statement  of  some 
of  the  evidences  which  support  the  contrary  view  of  the 
scientists. 

ARE  TESTS  OF  "OBSCENITY^   COMMON   KNOWLEDGE? 

Our  courts  have  answered  this  question  in  the  affirmative, 
but  they  promptly  contradict  that  statement  by  framing  mu- 
tually destructive  tests  of  "obscenity"  such  as  no  dictionary- 
maker  or  other  person  of  ordinary  intelligence  ever  thought 
of.  This  is  to  be  expected  so  long  as  judges,  without  hearing 
argument  or  considering  a  single  factor  of  the  scientific  aspect 
of  the  problem,  assume  to  determine  the  facts  of  natural 
science  by  mere  dogmatic,  judicial  dictum.  That  is  precisely 
what  has  been  done. 

Thus  it  is  said:  "The  statute  does  not  undertake  to  de- 
fine 'obscene'  or  'indecent/  *  *  *  *  The  words  are  them- 
selves descriptive.  *  *  *  *  These  are  matters  which  fall 
within  the  range  of  ordinary  intelligence."1 

If  the  quoted  words  mean  only  that  each  person  within 
his  fund  of  common  knowledge  includes  a  knowledge  as  to 
what  he  personally  deems  to  be  "obscene,"  then  the  statement 
may  be  true,  but  is  certainly  unimportant.  If,  on  the  other 
hand,  it  is  asserted  that  common  knowledge  will  enable  us  to 
know  under  all  circumstances  what  everyone  else  must  deem 
"obscene"  in  all  conceivable  cases,  and  that  all  our  judgments 
in  such  matter  are  alike,  then  the  statement  is  untrue,  and 
because  untrue  the  statute  is  a  nullity  on  account  of  the  uncer- 
tainty as  to  what  it  penalizes. 

Likewise  the  Supreme  Court  of  the  United  States  has 
implied  much  the  same  thought  as  the  N.  Y.  Court  when  the 
former  used  these  words  "Everyone  who  uses  the  mails  *  * 
*  *  must  take  notice  of  what  in  this  enlightened  age  is  meant 
by  decency,  purity  and  chastity  in  social  life  and  what  must 
be  deemed  obscene,  lewd  and  lascivious."2 

This  is  true  if  all  humans  have  an  innate  or  intuitional 
and  uniform  conception  of  what  the  words  in  question  sym- 
bolize. But  such  empty  judicial  rhetoric  does  not  help  us 
to  a  solution  of  the  real  question,  which  is :  Have  we  such  a 
uniform,  innate  or  intuitional,  immediate  sensuous  cognition 

1  People   vs.    Mnller,  96   N.   Y.   410. 
3  U.  S.  vs.  Rosen,  161  U.  S.  42. 

241 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

of  the  "obscene,"  as  to  preclude  the  necessity  for  a  statutory 
definition  of  that  element  of  the  crime? 

Another  court  used  these  words:  "There  are  in  the  lan- 
guage, words  known  as  words  obscene  in  themselves.  It  is 
not  necessary  in  order  to  make  a  book  obscene  that  such  words 
should  be  found  in  it.  *  *  *  A  book  is  said  to  be  obscene 
which  is  offensive  to  decency  or  chastity,  which  is  immodest, 
which  is  indelicate,  impure,"  etc.,  etc.8 

To  those  seeking  accuracy  of  description  for  statutory 
crimes,  the  use  of  such  mystifying  epithetic  tautology  is  not 
very  reassuring  as  to  the  clarity  of  the  judicial  vision  which 
could  mistake  it  for  a  definition.  Likewise  the  appeal  to  the 
consensus  of  opinion  in  "this  enlightened  age"  has  been  made 
in  support  of  every  superstition  that  has  ever  paralyzed  the 
human  intellect.  It  would  be  more  reassuring  if  judges  had 
given,  or  would  give,  us  a  test  of  obscenity,  in  terms  of  the 
objective,  sense-perceived  qualities  of  literature,  by  which 
test  alone  we  could  unerringly  and  with  unavoidable  uniform- 
ity, draw  the  same,  exact,  unshifting  line  of  partition  between 
what  is  obscene  and  what  is  pure  in  literature,  no  matter  who 
applies  the  test.  Until  they  furnish  such  a  test  to  us,  their 
dogmatic  assurance  that  "this  enlightened  age"  possesses  such 
undisclosed  knowledge  of  standards,  is  not  very  satisfactory. 
Without  such  a  test,  there  is  no  uniform  law  to  control  our 
conduct,  nor  that  of  our  courts  or  juries. 

The  universally  implied  judicial  assumption,  that  all  have 
a  uniform,  innate  sense  of  obscenity  and  decency,  by  which 
we  all  draw  the  same  line  of  demarkation  between  the  two 
had  its  origin  farther  back  in  our  juridical  history  when  such 
problems  had  a  different  aspect,  even  among  scientists.  By 
the  unavoidable,  yet  often  unfortunate,  judicial  habit  of  fol- 
lowing precedent,  courts  have  continued  the  error  long  after 
scientists  have  abandoned  the  old  foundation  for  it. 

We  shall  presently  see  that  our  judicial  notions  about 
the  innateness  of  our  knowledge  as  to  standards  of  "obscen- 
ity" had  their  origin  deep  in  the  religious  sentiments  of  the 
time  when  these  laws  were  passed  and  received  their  first 
judicial  interpretation.  Later  we  will  be  reminded  of  the 
great  change  which  has  remoulded  our  religious  as  well  as  our 
scientific  beliefs,  so  as  to  necessitate  an  abandonment  of  the 
premises  upon  which  the  courts  built  their  idea  of  the  in- 
tuitive character  of  our  knowledge  of  the  "obscene." 

•  U.  S.  vs.  Bennett,  Fed.  Case  No.  14571. 

242 


SCIENCE    VERSUS    JUDICIAL   DICTUM. 
THE  COURTS  ON  THE  ORIGIN  OF  MODESTY. 

First  then  we  will  study  the  foundation  of  the  judicial 
dictum  upon  the  psychologic  question  which  is  here  involved. 
The  most  complete  judicial  vindication  of  the  idea  that  our 
conception  of  modesty  is  innate  and  therefore  uniform  in  all 
humanity,  is  found  in  Ardery  vs.  the  State,  56  Ind.  329,  de- 
cided in  1877.  Then  the  court  said:  "Immediately  after  the 
fall  of  Adam,  there  seems  to  have  sprung  up  in  the  mind  an 
idea  that  there  was  such  a  thing  as  decency,  and  such  a  thing 
as  indecency,  *  *  *  and  since  that  time,  the  idea  of  decency 
and  indecency  have  been  instinctive  in  and,  indeed,  a  part  of, 
humanity.  And  it  historically  appears  that  the  first  most 
palpable  piece  of  indecency  in  the  human  being  was  the  first 
public  exposure  of  his  or  her,  as  now  commonly  called,  pri- 
vates; and  the  first  exercise  of  mechanical  ingenuity  was  the 
manufacture  of  fig-leaf  aprons  by  Adam  and  Eve,  in  which 
to  conceal  from  the  public  gaze  of  each  other  their  now  but 
not  then  called  privates.  This  example  of  covering  their  pri- 
vates has  been  imitated  by  all  mankind  since  that  time,  except 
perhaps  by  some  of  the  lowest  grades  of  savages.  Modesty 
has  ever  existed  as  one  of  the  most  estimable  and  admirable  of 
human  virtues."4 

A  similar  conclusion  is  expressed  by  a  Federal  Judge. 
"There  is  in  the  popular  conception  and  heart  such  a  thing 
as  modesty.  It  was  born  in  the  Garden  of  Eden.  After  Adam 
and  Eve  ate  from  the  fruit  of  the  Tree  of  Knowledge  they 
passed  from  that  condition  of  perfectibility  which  some  people 
nowadays  aspire  to,  and,  their  eyes  being  opened,  they  dis- 
cerned that  there  was  both  good  and  evil,  'and  they  knew  that 
they  were  naked,  and  they  sewed  fig-leaves  together,  and  made 
themselves  aprons.'  From  that  day  to  this,  civilized  man  has 
carried  with  him  a  sense  of  shame — the  feeling  that  there 
were  some  things  on  which  the  eye — the  mind — should  not 
look,  and  where  men  and  women  become  so  depraved  by  the 
use,  or  so  insensate  from  perverted  education,  that  they  will 
not  veil  their  eyes,  nor  hold  their  tongues,  the  government 
should  perform  the  office  for  them  in  protection  of  the  social 
compact  and  the  body  politic."5 

This  question-begging,  by  implications  made  from  such 
phrases  as  "protection  of  the  social  compact  and  the  body 

4  Ardery  vs.  State,  56  Ind.  829,  A.  D.  1877. 

*  U.  S.  vs.  Harman,  45  Fed.  Rep.  423,  A.  D.  1891. 

243 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

politic,"  we  must  pass  by,  as  the  phrase  itself  belongs  to  an  age 
of  outgrown  political  speculation.  So  also  the  outrageously 
absurd  assumption  that  persons  may  properly  be  denounced 
as  moral  degenerates  if  they  have  become  so  insensate  to  sen- 
sual suggestions  that  they  can  view  nude  humans  without 
being  ashamed,  because  not  sexually  excited  nor  afraid  of  the 
judgment  of  those  who  are.  To  many  it  will  seem  as  though 
the  sexually  insensate  ones  are  more  clean-minded  and  decent 
than  the  judge  who  denounces  them.  However,  in  passing  we 
may  mention  that  the  same  opinion  admits  that  some  have 
"blunted  sensibilities"  and  others  acute  sensitiveness,  from 
which  it  follows  that  our  sense  of  modesty,  etc.,  is  not  always 
uniform,  nor  affords  any  certainty  or  uniformity  in  the  en- 
forcement of  these  laws. 

THE  CHANGES  WROUGHT   BY   SCIENTIFIC   PROGRESS. 

Since  1877,  when  the  Ardery  case  was  decided,  a  great 
change  has  come  to  the  entire  intellectual  world.  In  1908 
the  public  press  proclaimed  that  a  commission  of  scholarly 
Catholics,  appointed  by  the  Pope,  had  made  a  report  to  the 
effect  that  the  books  of  Moses  are  not  infallible  and  cannot  be 
accepted  as  being  in  all  respects  literally  true.  Such  state- 
ments are  particularly  weighty  when  we  remember  that  the 
Roman  Catholic  Church,  in  such  matters,  is  so  extremely  con- 
servative as  to  be  often  stigmatized  as  reactionary. 

In  a  recent  Catholic  cyclopedia,  Benziger's  Library  of 
Science,  the  Jesuit  Fathers  show  their  accord  with  the  main 
features  of  the  doctrine  of  organic  evolution.  No  Catholic, 
with  even  moderate  scientific  intelligence,  has  within  two  dec- 
ades expressed  any  disagreement  with  the  Jesuit  Father, 
Erich  Wasman  of  Luxemburg,  when  in  his  work,  Modern  Biol- 
ogy and  the  Theory  of  Evolution,  he  says:  "The  theory  of 
evolution  to  which  I  subscribe  as  a  scientist  and  a  philosopher 
rests  on  the  foundations  of  the  Christian  doctrine  which  I 
hold  to  be  the  only  true  one."  Innumerable  Catholic  scientists 
have  similarly  expressed  acceptance  of  the  scientific  doctrine  of 
organic  evolution.6 

While,  of  course,  there  is  still  much  controversy  as  to 
detail  and  incidental  matter,  it  can  be  truthfully  said  that  as 
between  the  dogmas  of  special  creation  and  fixity  of  type, 
and  the  general  features  of  the  doctrine  of  organic  evolution, 

•  For  some  discussion  of  this  see:  HaeckePs  "Last  Words  on  Evolution." 

244 


SCIENCE   VERSUS    JUDICIAL   DICTUM. 

there  is  no  longer  any  disagreement  among  educated  persons. 

As  is  to  be  expected,  the  Protestant  scientists  are  even 
more  outspoken  than  the  Catholic  in  accepting  the  results  of 
modern  scientific  research,  and  the  doctrine  of  organic  evolu- 
tion is  now  being  taught  in  all  the  theological  seminaries  of 
Europe  and  America.  The  story  of  creation  as  related  in 
Genesis  is  accepted  everywhere  as  being  a  myth  or  an  allegory. 

We  may  here  content  ourselves  with  a  single  quotation 
showing  the  present  attitude  of  the  great  mass  of  educated 
present-day  Christians  toward  a  ready  acceptance  of  new 
statements  of  scientific  truth.  Prof.  James  B.  Pratt,  of 
Williams  College,  says  this:  "It  [religion]  must  forever  be 
sloughing  off  an  old  shell  and  growing  a  new  one.  The  shell 
indeed  is  important ;  but  woe  to  the  religion  which  identifies 
its  life  with  its  shell,  or  refuses  to  part  with  its  shell  when  it 
has  ceased  to  be  a  protection  and  has  become  a  clamping, 
choking  incumbrance  to  the  growth  of  its  inner  life.  *  *  *  * 
If  Christianity  today  should  identify  itself  with  the  infalli- 
bility of  the  scriptures,  or  with  the  creation  according  to 
Genesis,  or  with  any  of  the  dogmas  of  Christology,  it  would 
condemn  itself  to  swift  decay."7 

Creation,  the  fall  of  man,  and  the  fig-leaf  apron,  according 
to  Genesis,  in  their  literal  interpretation  are  no  longer  be- 
lieved to  be  true  by  any  Christian  with  scientific  education, 
and  thus  disappears  the  original  foundation  upon  which  rested 
the  judicial  opinions  that  humans,  in  the  Garden  of  Eden,  ac- 
quired an  innate  and  therefore  uniform  sense  of  the  obscene, 
the  modest,  etc. 

SCIENTISTS  ON  MODESTY  AS  AN  INSTINCT. 

The  judicial  dictum  that  modesty,  as  innate  in  man,  in- 
duced the  concealment  of  the  human  form,  is  not  very  im- 
portant in  itself.  However  the  discussion  of  the  question  is 
very  material  to  the  problem  under  consideration,  because  the 
evidence  bearing  upon  that  issue  will  illuminate  the  whole 
subject  of  the  psychology  of  modesty,  and  especially  help  us  to 
determine  whether  or  not  (within  the  limit  of  certainty  essen- 
tial to  the  validity  of  a  criminal  statute)  "obscenity"  is  de- 
finable in  terms  of  a  book  or  picture,  or  is  at  all  a  quality  resid- 
ing in  the  thing  contemplated,  or,  on  the  contrary,  whether  it 
is  indefinable  because  resident  exclusively  within  and  depend- 

7  The  Psychology  of  Religious  Belief,  287. 

245 


OBSCENE   LITERATURE   AND  CONSTITUTIONAL   LAW. 

ent  upon  the  peculiar  intellectual  and  emotional  associations 
and  predisposition  of  the  contemplating  mind. 

The  judicial  assumption  was  that  modesty  is  innate  and 
intuitive,  and  therefore  antedated  and  induced  the  use  of 
clothing.  Now  will  be  quoted  the  contrary  conclusion  of 
scientists,  that  modesty  instead  of  being  the  cause  is  an  ef- 
fect, a  mere  artificial,  varying  and  unstable  psychologic  con- 
sequence, produced  chiefly  by  the  wearing  of  clothing. 

Prof.  Edward  Westermarck,  Ph.D.,  of  Finland. 
Westermarck  (Hist,  of  Marriage,  p.  211.,)  after  a  careful 
review  of  the  evidence,  says:  "These  facts  appear  to  prove 
that  the  feeling  of  shame,  far  from  being  the  original  cause  of 
man's  covering  his  body,  is,  on  the  contrary,  a  result  of  this 
custom;  and  that  the  covering,  if  not  used  as  a  protection  from 
the  climate,  owes  its  origin,  at  least  in  many  cases,  to  the  de- 
sire of  men  to  make  themselves  attractive."8 

Prof.  Ch.  Letourneau,  of  Paris. 

"In  a  former  work9  I  have  attempted  to  trace  the  genesis 
of  a  sentiment  peculiar  to  humanity — the  sentiment  of  mod- 
esty. It  would  be  inexpedient  here  to  treat  the  subject  afresh 
in  detail,  but  I  will  recall  the  conclusions  arrived  at  by  that 
investigation.  Modesty  is  par  excellence  a  human  sentiment, 
and  is  totally  unknown  to  the  animals,  although  the  procrea- 
tive  need  inspires  them  with  desires  and  passions  essentially 
identical  with  what  in  man  we  call  love;  it  is  therefore  cer- 
tainly an  artificial  sentiment,  and  comparative  ethnology 
proves  that  it  must  have  resulted  from  the  enforced  chastity 
imposed  on  women  under  the  most  terrible  penalties."10 

Geoffrey  Mortimer,  of  England. 

"There  seems  to  be  no  doubt  whatever  that  clothing  was 
adopted  for  warmth  and  decoration,  and  not  from  motives  of 
decency.  Drapery  has  always  served  to  inflame  sexual  pas- 
sion, and  some  tribes  have  regarded  all  garments  as  indecent. 
Mr.  Wallace  found  the  Brazilian  Indian  woman  who  put  on  a 
petticoat  almost  as  ashamed  of  herself  as  civilized  people 
would  be  if  they  took  theirs  off.  Only  prostitutes  clothe 
themselves  among  the  Saliras,  and  they  dress  to  excite  through 
hiding  the  body.  *  *  *  As  Westermarck  says:  "It  is  not  the 

8  Requoted   from  7th  Ed.  of  Krafft-Ebing,  Psycopathia  Sexualis,  p.   15.     Ser 
also:   Ellis'  Studies  in  the  Psychology  of  Sex  (Modesty)   p.  38. 

9  L' Evolution  de  la  Morale. 

10  Letourneau,  Evolution  of  Marriage,   56. 

246 


SCIENCE   VERSUS    JUDICIAL   DICTUM. 

feeling  of  shame  that  has  provoked  the  covering,  but  the 
covering  that  has  provoked  the  feeling  of  shame.'  *  *  *  Its 
[modesty's]  origin  was  not  in  morality  and  a  native  sense 
of  decency,  though  modesty  is  now  estimated  as  moral  and 
decent/'11 

Prof.  Th.  Ribot,  of  France. 

"The  conditions  of  its  [modesty's]  origin  is  little  under- 
stood. H.  Spencer  and,  after  him,  Sergi,  maintain  that  it 
results  from  the  habit  of  wearing  clothes,  which  began  with 
man  (not  with  woman)  from  motives  of  ostentation  and  or- 
nament. *  *  *  Besides  this  special  mode  of  expression  [blush- 
ing] modesty  shows  itself  by  concentric,  defensive  movements, 
by  a  tendency  to  cover  or  disguise  certain  parts  of  the  body. 
The  means  employed  to  this  end  are  of  the  most  various 
description  according  to  race,  country  or  period:  Some  hide 
the  whole  body,  some  the  sexual  parts  only,  or  the  face  or 
bosom,  some  paint  the  body,  or  the  face,  etc.  It  is  impossible 
to  determine  the  exact  part  played  in  this  diversity  by  cir- 
cumstances, climatic  conditions,  and  the  association  of  ideas, 
compulsion,  fashion,  imitation,  and  even  change."12 

Charles  Darwin. 

Darwin  expresses  his  belief  "that  self -attention  directed 
to  personal  appearance,  in  relation  to  the  opinion  of  others," 
and  "not  to  moral  conduct"  is  the  fundamental  element  in 
shyness,  modesty,  shame  and  blushing.18 

Prof.  William  I.  Thomas,  of  University  of  Chicago. 
"The  native  assumption  that  men  were  ashamed  because 
they  were  naked,  and  clothed  themselves  to  hide  their  naked- 
ness, is  not  tenable  in  the  face  of  the  large  mass  of  evidence 
that  many  of  the  natural  races  are  naked  and  not  ashamed  of 
their  nakedness ;  and  a  much  stronger  case  can  be  made  out  for 
the  contrary  view,  that  clothing  was  first  worn  as  a  mode  of 
attraction  and  modesty  then  attached  to  the  act  of  removing 
the  clothing. 

"But  while  we  find  cases  of  modesty  without  clothing  and 
of  clothing  without  modesty,  the  two  are  usually  found  to- 
gether, because  clothing  and  ornament  are  the  most  effective 
means  of  drawing  the  attention  to  the  person.  Sometimes  by 

11  Chapters  on  Human  Love,  by  Geoffrey   Mortimer,   pp.    37,   38,   40,  41. 

"Ribot,  Psychology  of  the  Emotions,  272. 

13  Expression  of  Emotions  in  Man  and  Animals,   pp.   325-327. 

247 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL    LAW. 

concealing  it  and  sometimes  by  emphasizing  it.  *  *  *  *  We 
recall  the  psychological  standpoint  that  the  emotions  are  an 
organic  disturbance  of  equilibrium  occurring  when  factors 
difficult  of  reconciliation  are  brought  to  the  attention.  *  *  * 
When  the  habits  are  set  up  and  are  running  smoothly,  the 
attention  is  withdrawn,  and  nakedness  was  a  habit  in  the  un- 
clothed societies,  just  as  it  may  become  a  habit  now  in  the 
artist's  model.  *  *  *  When  once  a  habit  is  fixed,  interfer- 
ence with  its  smooth  running  causes  an  emotion.  The  nature 
of  the  habit  broken  is  of  no  importance.  If  it  were  habitual 
for  grande  dames  to  go  barefoot  on  our  boulevards  or  to  wear 
sleeveless  dresses  at  high  noon,  the  contrary  would  be  em- 
barrassing."14 

Dr.  Paolo  Mantegazza,  of  Italy. 

"I  acknowledge  that  I  myself,  as  the  years  went  by, 
changed  the  idea  I  first  had  of  modesty,  and  which  I  treated 
in  the  Physiology  of  Pleasure.  At  first  it  seemed  to  me  a 
sentiment  that  rises  within  us  in  childhood  and  youth,  spon- 
taneous as  egotism,  self-respect,  love ;  and  then,  again,  I  be- 
came persuaded  that  modesty  is  taught  first  and  learned 
afterward ;  for  which  reason  it  is  one  of  those  sentiments 
which  I  term  acquired  or  secondary.  *****  ^he  animals 
demonstrate  to  us  some  forms  emanating  from  modesty.  Many 
ot  them  conceal  themselves  in  order  to  offer  sacrifice  to 
voluptuousness;  numerous  females  sought  by  the  male  begin 
by  fleeing,  resisting,  by  hiding  that  which  they  desire  to  con- 
cede. And  this  is  probably  an  irreflective  automatic  act;  it  is, 
perhaps,  a  form  of  fear,  which  rises  before  the  aggressive 
requirements  of  the  male ;  these  flights,  these  resistances,  these 
phantoms  of  modesty  have  the  scope  to  excite  the  female  as 
much  as  the  male,  and  to  prepare  the  soil  more  suitable  for 

fecundation Sherihat  ordered  the  Turkish 

women  to  cover  the  back  of  the  hand,  but  permitted  them  to 
expose  the  palm.  The  Armenian  women  of  Southern  India 
cover  the  mouth  even  at  home,  and  when  they  go  out  they 
wrap  themselves  in  white  linen.  The  married  live  in  great 
seclusion  and  for  many  years  they  cannot  see  their  male 
relatives  and  conceal  their  faces  even  from  the  father-in-law 
and  mother-in-law.  These  two  examples,  selected  from  a  thou- 
sand that  might  be  cited,  suffice  to  persuade  us  that  acces- 
sory and  conventional  elements  are  often  joined  to  true  mod- 

"Prof.  Thomas'  Sex  and  Society,  pp.   207  to  218. 

248 


SCIENCE    VERSUS    JUDICIAL    DICTUM. 

•esty  which,  physiologically  considered,  do  not  belong  to  it 
We,  ourselves,  without  leaving  Europe,  find  that  the  confines 
of  modesty  are  marked  in  many  countries  by  the  various 
fashions,  not  according  to  morality  or  the  requirements  of  sex, 
but  according  to  national  mode  of  dress.  He  who  exchanged 
these  conventional  elements  for  modesty  could  write  the  great 
psychological  heresy,  that  this  sentiment  had  its  origin  in  the 
custom  of  covering  one's  self. 

"The  sentiment  of  modesty  is  one  of  the  most  changeable 
in  form  and  degree,  and  we  will  write  its  ethical  history  in  the 
volume  which  we  will  dedicate  to  the  ethnology  of  love.  Thus 
without  going  further  than  our  race  and  time,  we  have  women 
who  would  let  themselves  die  rather  than  subject  themselves 
to  an  examination  with  the  speculum,  and  we  have  men  of 
great  intelligence  and  lofty  passions  who  confess  that  they 
feel  scarcely  a  shadow  of  modesty.  *  *  * 

"Modesty  is  one  of  the  choicest  forms  of  seduction  and 
of  the  reticence  of  love ;  it  is  an  extra  current  of  the  great 
fundamental  phenomena  of  generation ;  it  is  a  physical  respect 
of  one's  self;  it  is  one  of  those  psychical  phenomena  of  the 
highest  order.  *****  if  the  sentiment  of  modesty  were 
not  a  great  virtue,  it  would  be  the  most  faithful  companion 
of  voluptuousness,  the  greatest  generator  of  exquisite  joys. 
An  ardent  thirst  and  an  inebriating  bowl ;  what  joy,  but  what 
danger  of  satiety."15 

To  discuss  the  issue  thus  joined  will  be  the  purpose  of  the 
immediately  succeeding  chapters,  and  these  will  deal  unavoid- 
ably with  unusual  factors,  mainly  in  the  realm  of  sexual 
psychology,  which  are  essential  to  a  determination  of  the 
psychic  essence  of  "obscenity."  To  the  lawyer  whose  learning 
is  limited  to  a  memory-knowledge  of  judicial  precedent,  the 
new  psychologic  propositions  to  be  contended  for  may  seem 
a  bit  startling.  Knowing  that  the  disturbance  of  long  fixed 
mental  habits  and  the  disruption  of  their  association  with 
intense  moral-sentimentalism,  usually  produces  an  inhibition 
against  the  assimilation  of  the  -disturbing  and  disrupting 
argument,  I  feel  it  necessary  now  to  devote  some  space  to  a 
plea  for  open-mindedness  for  the  considerations  supporting 
the  following  proposition : 

"The  Physiology  of  Love,  pp.  91  to  97. 

249 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL    LAW. 

STATEMENT  OF  CONTENTIONS.  "Obscene  and 
indecent''  are  never  qualities  of  literature  or  art,  and  therefore 
are  never  a  matter  of  sensory  cognition,  discoverable  b\ 
unerring  and  uniform  standards  inductively  derived  from  the 
nature  of  things,  but,  on  the  contrary,  these  qualities  reside 
always  and  exclusively  in  the  contemplating  mind,  and  arc 
merely  read  into,  or  ascribed  erroneously  to,  the  book  or 
picture.  In  various  ways  this  will  be  proven  to  a  demonstra- 
tion. By  a  critical  psychological  analysis,  it  will  be  shown  that 
the  only  unifying  element  generalised  in  the  word  "obscene' 
(that  is  the  only  thing  common  to  every  conception  of  obscenity 
and  indecency}  is  subjective,  is  an  affiliated  emotion  of  dis- 
approval, which,  under  varying  circumstances  of  temperament 
and  education,  is  different  in  different  persons,  and  in  each 
person  at  different  stages  of  development,  and  is  arousal 
peculiarly  and  distinctively  in  each  individual,  differently  from 
other  persons,  to  varying  degrees  of  intensity  by  each  of 
various  stimuli,  and  so  has  become  associated  differently  in 
different  persons  with  an  infinite  variety  of  ever-changing 
objectives,  having  not  even  one  common  element  in  objective 
nature  (in  literature  or  art}. 

The  before  stated  contention  will  be  re-info  reed  by  an 
array  of  facts  of  ethnography  and  sexual  psychology,  exhibit- 
ing the  great  diversity  in  the  foci  of  indecency  and  modesty ; 
by  a  psychologic  study  of  modesty  showing  that  in  actual 
practise  judgments  of  modesty  are  usually  the  fear-imposed 
verdict  of  others  and  not  rational  convictions,  nor  deductions 
made  from  a  uniform  standard  derived  from  nature,  or 
established  by  statute;  by  a  study  of  the  uncertainty  of  the 
moral-test  of  "obscenity"  to  show  it  to  be  equally  void  of 
definite  standards ;  by  an  exhibition  of  the  varieties  of  official 
modesty  and  of  some  mutually  destructive  factors  of  the 
judicial  legislation  creating  tests  of  "obscenity";  by  authori- 
tive  confessions  of  their  uncertainty ;  and  by  some  illustrative 
applications  of  these  tests  to  exhibit  their  utter  absurdity. 

All  this  is  to  the  point  that  neither  nature,  common 
knowledge,  science,  nor  the  statute  does  or  can  furnish  u? 
with  such  a  definition  of  the  crime — such  criteria  of  guilt— 
that  it  must  unerringly  fix  the  same  unshifting  line  of  partition 
between  the  criminally  obscene  and  that  which  is  innocent, 
when  applied,  no  matter  by  whom,  to  every  book  or  picture  in 

250 


SCIENCE    VERSUS    JUDICIAL    DICTUM. 

the  broad  borderland  of  the  literature  of  doubtful  "purity."' 
This  fact  will  be  co-ordinated  with  established  legal  maxims, 
as  indispensable  and  controlling  elements  of  constitutional 
construction.  Although  it  is  not  absolutely  essential  to  the 
correctness  of  my  conclusions,  I  believe  all  this  to  be  true 
because  the  only  element  of  unification  generalized  in  the 
word  "obscene"  is  not  in  the  quality  of  a  book  or  a  picture  but 
exists  solely  in  the  contemplating  mind. 

STATEMENT  OF   ISSUE  BETWEEN  JUDGES  AND  SCIENTISTS. 

The  conflict  between  the  before  quoted  judicial  dictum 
and  the  later  scientific  conclusions,  forms  the  issues  now  to  be 
investigated.  Before  marshalling  any  of  the  evidence  it  is 
desirable  to  restate  that  issue  of  science  and  again  to  indicate 
the  legal  consequences  toward  which  the  conclusion  should 
lead  us. 

We  are  to  determine  whether  modesty  is  an  innate  at- 
tribute of  all  humans, — a  part  of  human  nature  itself — and 
therefore  a  matter  within  the  range  of  ordinary  intelligence 
resulting  in  uniform  judgments  by  a  uniform  intuitive  stand- 
ard; or  whether,  if  those  judgments  are  not  instinctively  alike, 
they  are  so  variable  and  uncertain  as  to  make  a  statutory 
definition  essential  to  uniformity  in  the  execution  of  the 
criminal  statutes  in  question,  and  therefore  essential  to  the 
constitutionality  of  the  statute. 

In  other  words,  is  "obscenity"  a  matter  of  sense- 
cognition,  discoverable  by  unerring  and  uniform  standards, 
existing  in  the  nature  of  things,  or  does  it  exist  wholly  within 
the  contemplating  mind,  so  that  every  verdict  or  judgment  is 
therefore  dependent,  not  upon  the  letter  of  any  general  law, 
but  in  each  person  according  to  his  personal  whim,  caprice, 
prejudice,  "moral"  idiosyncracies,  varying  personal  ex*-  : 
ences  and  different  degrees  of  sexual  hyper-astheticism  or  of 
intelligence  about  sexual  psychology?  If  the  latter,  then  the 
statute  is  clearly  void  for  uncertainty.  These  issues  of  science 
we  will  now  investigate. 

I  am  aware  how  offensive  some  of  the  above  claims  must 
seem  to  those  who  may  have  given  little  or  no  critical  thought 
to  sexual  psychology,  and  who  therefore  have  not  even  dreamed 
that  such  a  question  could  be  raised.  After  this  propo- 
sition was  first  advanced  by  me,  in  a  paper  before  the  XV 
Congres  International  de  Medicine,  held  at  Lisbon,  April,  1906, 

251 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

some  quasi-scientists  have  dogmatically  expressed  their  emo- 
tional aversion  to  such  a  conclusion,  but  not  one  has  had  the 
courage  to  try  to  answer  the  argument.  Expert  psychologists, 
however,  have  expressed  their  agreement  with  my  conclusions. 
However,  the  little  teapot  storms  which  my  proposition  raised 
in  the  minds  of  a  very  few  people,  credited  with  intelligence, 
again  warns  me  that  I  am  disrupting  old  convictions,  resting 
upon  established  emotional  associations,  and  that,  therefore,  I 
cannot  hope  for  an  open-mind  even  in  the  reader  of  more  than 
average  intelligence  and  that  again  I  must  take  valuable  space 
to  plead  for  intellectual  hospitality  for  my  argument. 

A   PLEA    FOR   OPEN-MINDEDNESS. 

To  this  end  let  me  recall  the  well  known  anecdote  of  the 
Royal  Society,  to  whom  King  Charles  II  proposed  that  they 
explain  how  it  came  that  a  vessel  of  water  weighs  no  more 
after  having  a  live  fish  put  into  it,  though  it  does  if  the  fish  be 
dead?  Various  solutions  of  great  ingenuity  were  proposed, 
discussed,  objected  to,  and  defended.  After  long  bewilder- 
ment, it  occurred  to  some  one  to  try  the  experiment,  and  it  was 
found  that  the  fact  to  be  explained  existed  only  in  the  mind  of 
the  monarch.16 

So  now,  I  beg  you  to  be  patient  with  an  argument  which 
may  prove  to  you  that  almost  daily  we  are  sending  persons 
to  a  felon's  cell,  and  are  gravely  discussing  certain  alleged 
"evils"  which  the  criminal  law  is  designed  to  suppress,  with- 
out ever  seriously  inquiring  if  the  facts  which  determine  guilt 
exist  anywhere  except  in  the  imagination  of  the  judge  and 
jury  who  try  the  accused. 

It  was  objected  to  the  system  of  Copernicus,  that  if  the 
earth  turned  upon  its  axis,  as  he  represented,  a  stone  dropped 
from  the  summit  of  a  tower  would  not  fall  at  the  foot  of  it 
but  a  great  distance  to  the  west,  in  the  same  manner  as  a  stone 
dropped  from  the  mast-head  of  a  ship  moving  at  full  speed 
does  not  fall  at  the  foot  of  the  mast  but  toward  the  stern. 
To  this  it  was  answered  that  a  stone  being  part  of  the  earth 
obeys  its  laws  and  moves  with  it ;  whereas  it  is  no  part  of  a 
ship,  of  which  its  motion  is  therefore  independent.  The  solu- 
tion was  admitted  by  some  and  opposed  by  others  with  great 
earnestness.  It  was  not  until  one  hundred  years  after  the 
death  of  Copernicus  that  an  experiment  demonstrated  that 

16  Famous  Pamphlets,   p.   255. 

252 


SCIENCE    VERSUS    JUDICIAL    DICTUM. 

a  stone  thus  dropped  from  the  mast-head  does  fall  at  the  foot 
of  it.17 

Could  there  be  any  harm  if  we  made  a  scientific  inquiry 
to  ascertain  if  all  the  "obscenity"  which  we  criminally  punish 
has  any  existence  outside  of  the  mind  and  emotions  of  those 
whose  unreasoned  predispositions  or  emotional  associations 
are  offended  ?  The  laws  against  imaginary  crimes  are  annulled 
when  we  destroy  the  superstition,  if  such  it  is,  which  is  an 
indispensable  assumption  of  the  statutes. 

WITCHCRAFT  AND  OBSCENITY,  TWIN  SUPERSTITIONS. 

As  I  contemplate  the  difficulty  of  my  present  unpopular 
task,  I  am  again  and  again  impressed  that  it  is  not  unlike 
that  of  a  lawyer  who  should  have  presumed  to  appear  before 
an  English  Judge  of  three  centuries  ago  and  seriously  endeav- 
ored to  persuade  him  that  there  were  no  such  beings  as 
witches.  There  are  many  things  in  common  between  the  be- 
lief in  the  objective  verity  of  witches  and  of  obscenity.  Both 
beliefs  had  their  origin  in  religion,  and  now  we  are  to  con- 
sider if  obscenity,  like  witchcraft,  won't  disappear  when  we 
cease  to  believe  in  it.  I  beg  the  reader  to  remember  that  the 
immediate  problem  is  one  of  science  and  not  of  religion, 
morals  or  law.  Let  us  think  it  over  in  the  calm  dispassion  of 
the  true  scientist's  quest  for  truth. 

Fanatical  as  well  as  hospitable  men  and  pious  judges, 
otherwise  intelligent,  have  affirmed  the  reality  of  both  witches 
and  obscenity  and,  on  the  assumption  of  their  inerrancy  in 
this,  have  assumed  to  punish  their  fellow-men.  It  is  com- 
puted from  historical  records  that  9,000,000  persons  were  put 
to  death  for  witchcraft  after  1484. 18  The  opponents  of  witch- 
craft were  denounced  just  as  the  disbelievers  in  the  "obscene" 
are  now  denounced.  Yet  witches  ceased  to  be  when  men  no 
longer  believed  in  them.  Think  it  over  and  see  if  the  "ob- 
scene" will  not  also  disappear  when  men  cease  to  believe  in  it. 

In  1661  the  learned  Sir  Matthew  Hale,  "a  person  than 
whom  no  one  was  more  backward  to  condemn  a  witch  with- 
out full  evidence,"  used  this  language:  "That  there  are  such 
angels  [as  witches]  it  is  without  question."  Then  he  made  a 
convincing  argument  from  Holy  Writ  and  added:  "It  is  also 
confirmed  to  us  by  daily  experience  of  the  power  and  energy 
of  these  evil  spirits  in  witches  and  by  them."19 

A  century  later  the  learned  Sir  William  Blackstone,  since 

17  Ibid.,   p.   256. 

18  Gage,   "Woman,  Church  and  State,"  pp.   217  to  247. 
18See  Annals  of   Witchcraft,  by  Drake,  preface,  page  xi. 

253 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

then  the  mentor  of  every  English  and  American  lawyer,  joined 
with  the  witch-burners  in  bearing  testimony  to  the  existence 
of  these  spook-humans,  just  as  our  own  courts  to-day  join 
with  the  obscenity-hunters  to  affirm  that  obscenity  is  in  a 
book  and  not  in  the  reading  mind,  and  that  therefore  the 
publisher,  and  not  the  reader,  shall  go  to  jail  for  being  "ob- 
scene." 

Blackstone  said:  "To  deny  the  possibility,  nay,  actual 
existence  of  witchcraft  and  sorcery  is  at  once  flatly  to  con- 
tradict the  revealed  word  of  God  in  various  passages  of  both 
the  Old  and  New  Testament,  and  the  thing  itself  is  a  truth 
to  which  every  nation  in  the  world  hath  in  its  turn  borne 
testimony,  either  by  example  seemingly  well  tested,  or  by 
prohibitory  laws  which  at  least  suppose  the  possibility  of 
comrrerce  with  evil  spirits."20 

And  yet  when  men  ceased  to  believe  in  witches,  they 
ceased  to  be,  and  so  when  men  shall  cease  to  believe  in  the 
"obscene"  they  will  also  cease  to  find  that.  Obscenity  and 
witches  exist  only  in  the  minds  and  emotions  of  those  who 
believe  in  them,  and  neither  dogmatic  judicial  dictum  nor 
righteous  vituperation  can  ever  give  to  either  of  them  any 
objective  existence. 

In  the  "good  old  days,"  when  a  few,  wiser  than  the 
rest,  doubted  the  reality  of  witches,  the  doubter,  if  not  himself 
killed  as  being  bewitched,  was  cowed  into  silence  by  an  ava- 
lanche of  vituperation  such  as  "infidel,"  "atheist,"  or  "emis- 
sary of  Satan,"  "the  enemy  of  God,"  "the  anti-Christ,"  and 
some  witch-finder  would  get  on  his  trail  to  discover  evidence 
of  this  heretic's  compact  with  the  devil ;  as  is  the  case  with 
obscenity,  those  seeking  to  destroy  belief  in  witchcraft  were 
accused  of  seeking  to  abolish  morality,  and  as  a  successful 
scarecrow  to  prove  this  it  was  argued  by  John  Wesley  and 
others,  that  to  give  up  witchcraft  was  in  effect  to  give  up 
the  Bible.  Let  us  not  be  frightened  by  such  conjectural 
morality,  but  rather  inquire  boldly  and  frankly  as  to  the 
objective  import  and  reality  of  all  that  we  punish  as  danger- 
ous to  society  under  the  name  of  "obscenity." 

QUESTION-BEGGING  EPITHETS  NOT  ARGUMENT. 

How  this  attitude  toward  witchcraft  is  duplicated  in  the 
attitude  of  a  large  portion  of  the  public  toward  those  who  dis- 

*°Blackstone's  Commentaries,  page  59.    Edition  of  1850. 

254 


SCIENCE   VERSUS    JUDICIAL   DICTUM. 

believe  in  the  objectivity  of  "obscenity"!  Whether  obscenity 
is  a  sense-perceived  quality  of  a  book,  or  resides  exclusively  in 
the  reading  mind,  is  a  question  of  science,  and  as  such,  a  le- 
gitimate matter  of  debate.  Try  to  prove  its  non-existence  by 
the  scientific  method,  and  the  literary  scavengers,  instead  of 
answering  your  argument  by  showing  the  fallacy  of  its  logic 
or  error  of  fact,  show  their  want  of  culture,  just  as  did  the 
witch-burners.  They  tell  you  that  you  are  (quoting  from  Mr. 
Comstock)  "either  an  ignoramus  or  so  ethereal  that  there  is 
no  suitable  place  on  earth  for  you,"  except  in  jail.  They  fur- 
ther hurl  at  you  such  unilluminating  epithetic  arguments  as 
"immoral,"  "smut-dealer,"  "moral-cancer  planter,"  etc.,  etc. 
Such  epithets  may  be  very  satisfying  to  undeveloped  minds, 
but  they  will  not  commend  themselves  very  highly  to  any 
person  wishing  to  enlighten  his  intellect  upon  the  real  ques- 
tion at  issue.  Again  we  say:  This  is  a  matter  of  science, 
which  requires  fact  and  argument  and  cannot  be  disposed  of 
by  question-begging  villification.  It  is  a  regrettable  fact 
that  the  "moral"  majority  is  still  too  ignorant  to  know  that 
such  question-begging  epithets  when  unsupported  are  not 
argument,  and  its  members  are  too  obsessed  with  sensual 
images  to  be  open  to  any  proof  against  their  resultant  "ob- 
scene" superstition. 

Think  it  over  and  see  if  when  you  cease  to  believe  in  the 
existence  of  "obscenity,"  you  must  not  also  cease  to  find  it. 
If  that  be  true,  then  it  exists  only  in  the  minds  and  emotions 
of  those  who  believe  in  the  superstition.  Empty  your  mind 
of  all  ideational  and  emotional  associations  which  the  mis- 
called "pure"  people  have  forced  into  your  thoughts.  Hav- 
ing done  this,  you  may  be  prepared  to  believe  that  "unto  the 
pure  all  things  are  pure;  but  unto  them  that  are  defiled  and 
unbelieving  is  nothing  pure ;  but  even  their  mind  and  con- 
science is  defiled."21  Not  till  thus  cleansed  can  you  join  in 
these  words :  "I  know,  and  am  persuaded  by  the  Lord  Jesus, 
that  there  is  nothing  unclean  of  itself,  but  to  him  that  esteem- 
«th  anything  to  be  unclean,  to  him  it  is  unclean."22 

THE  JUDICIAL   EPITHETIC  ARGUMENT. 

The  courts  are  more  refined,  though  not  more  argumen- 
tative or  convincing,  in  their  manner  of  denouncing  dissen- 


aiTitus,  1-15. 
"Romans  14,  14. 


255 


OBSCENE    LITERATURE   AND   CONSTITUTIONAL   LAW. 

ters.  The  judicial  formula  is  this:  "When  such  matters  are 
said  to  be  only  impure  to  the  over-prudish,  it  but  illustrates 
how  familiarity  with  obscenity  blunts  the  sensibilities,  de- 
praves good  taste,  and  perverts  the  judgment."23  Again  we 
ask  for  fact  and  argument,  not  question-begging  dogmatism. 
The  statute  furnishes  no  standard  of  sex  sensitiveness,  nor  is 
it  possible  for  any  one  to  prescribe  a  general  rule  of  judg- 
ment by  which  to  determine  where  is  the  beginning  of  the 
criminal  "blunted  sensibilities,"  or  the  limit  of  "good  taste," 
and  the  law-making  power  could  not  confer  this  legislative 
authority  upon  a  judge,  though  in  these  cases  all  courts  are 
unconsciously  presuming  to  exercise  it. 

Furthermore,  it  is  not  clear  that  "blunted  sensibilities" 
are  not  a  good  kind  to  be  encouraged  in  the  matter  of 
sex.  Who  would  be  harmed  if  all  men  ceased  to  believe  in 
the  "obscene,"  and  acquired  such  "blunted  sensibilities" 
that  they  could  discuss  matters  of  sex — as  we  now  discuss 
matters  of  liver  or  digestion — with  an  absolute  freedom  from 
all  lascivious  feelings?  Why  is  not  that  condition  preferable 
to  the  diseased  sex-sensitiveness,  so  often  publicly  lauded 
when  parading  in  the  verbiage  of  "purity?"  If  preferable, 
and  so-called  "obscene"  literature  will  help  to  bring  about 
such  "blunted  sensibilities,"  would  it  not  be  better  to  encour- 
age such  publications?  It  requires  argument  and  fact,  rather 
than  "virtuous"  platitudes,  to  determine  which  is  the  more 
healthy-minded  attitude  toward  these  subjects.  I  plead  for 
scientific  research,  not  the  brute  force  of  blind  dogmatism  and 
cruel  authority.  Let  us  remember  that  "in  scientific  inquiry 
the  ability  to  weigh  evidence  goes  for  much,  but  facility  in 
declamation  [and  vituperation]  goes  for  little."24 

If,  in  spite  of  the  argument  by  vituperation,  a  person 
refuses  to  submit  "with  humble  prostration  of  intellect"  to 
the  demands  of  moral  snobbery,  he  is  cast  from  the  temple  of 
"good  society"  into  jail.  Then  the  benighted  act  as  though 
by  their  question-begging  epithets,  or  jail  commitment,  they 
had  solved  the  scientific  problem  which  is  involved.  Let  us 
examine  if  it  is  not  as  true  of  obscenity,  as  of  every  witch,  that 
it  exists  only  in  the  minds  of  those  who  believe  in  it. 

FEAR-INSPIRED    AVOIDANCE    OF    THE    ISSUE. 

There  is  another  particular  in  which  the  controversy 
over  witchcraft  resembles  the  controversy  concerning  the 

M45   Fed.   Rep.   423. 

MFiske's  Cosmic  Philosophy,  v.  2,   p.   173. 

256 


SCIENCE    VERSUS    JUDICIAL    DICTUM. 

suppression  of  the  so-called  "obscene."  The  earlier  op- 
ponents of  witchcraft  always  deemed  it  most  important  to 
anticipate  and  defend  themselves  against  the  influence  of 
question-begging  epithets,  such  as  "infidel"  and  "atheist,"  etc. 
So  we  find  them  always  explaining  that  this  is  unjust  because 
they  do  not  really  deny  the  being  and  existence  of  witches, 
but  controvert  only  their  alleged  mode  of  operation.  Thus 
John  Webster,  in  1677,  defends  the  whole  class  of  anti-witch- 
mongers  by  arguments  of  which  the  following  is  a  sample: 
"If  I  deny  that  a  witch  cannot  fly  in  the  air,  nor  be  trans- 
formed or  transubstantiated  into  a  cat,  a  dog,  or  a  hare,  or 
that  a  witch  maketh  any  visible  covenant  with  the  devil  or  that 
he  sucketh  on  the  bodies,  or  that  the  devil  hath  carnal  copu- 
lation with  them,  I  do  not  thereby  deny  either  the  being  of 
witches,  nor  other  properties  that  they  may  have,  for  which 
they  may  be  so-called:  No  more  than  if  I  deny  that  a  dog 
hath  rugibility  (which  is  only  proper  to  a  lion)  doth  it  follow 
that  I  deny  the  being  of  a  dog."28 

Similar  to  this  is  it  with  the  opponents  of  the  censorship 
of  obscenity.  Every  little  while  we  have  an  explosive  pro- 
test against  the  suppression  of  some  book  or  work  of  art,  but 
these  moral  heretics  always  hasten  to  explain  their  firm  be- 
lief in  "obscenity"  as  a  quality  of  other  books  or  pictures,  but 
they  protest  that  it  does  not  exist  where  the  censor  or  court 
thought.  They  firmly  believe  that  "truly  obscene  literature" 
ought  to  be  suppressed,  but  they  assert  that  a  great  blunder 
has  been  made  in  suppressing  the  particular  book  in  which  they 
are  unable  to  discover  any  obscenity.  They  hasten  to  ap- 
prove the  arbitrary  power  conferred  by  a  criminal  statute 
which  fails  to  furnish  the  criteria  of  guilt,  but  complain  that 
the  arbitrary  power  has  been  abused.  They  like  a  govern- 
ment by  the  lawless  will  of  men  rather  than  a  government 
by  officials  who  are  equally  subjected  to  the  law,  but  they 
prefer  it  should  be  their  own  lawless  will  and  not  that  of  an- 
other with  different  ideals  that  should  govern. 

As  for  me,  I  am  not  content  to  protest  merely  against  the 
abuse  of  arbitrary  power ;  I  want  that  power  itself  destroyed. 
I  am  not  content  to  deny  the  mode  in  which  witches  and  ob- 
scenity are  alleged  to  impair  the  morals  of  humanity.  I  de- 
mand that  a  searching  and  fearless  inquiry  be  made  as  to  the 
objective  reality  and  essential  characteristics  of  obscenity  as 
well  as  witches.  All  this  is  said  not  by  way  of  apology,  but 
as  a  plea  for  open-mindedness  for  what  follows. 

uThe  Displaying  of  Supposed  Witchcraft,  p.  10. 

257 


CHAPTER  XIII. 

ETHNOGRAPHIC   STUDY   of   MODESTY   and 
OBSCENITY. 

SYLLABUS  of  CONTENTIONS:  The  ethnographic 
facts,  a  few  of  which  are  herewith  presented,  show  that  there 
is  not  a  single  element  of  objective  nature  which  is  a  constituent 
factor  of  every  conception  of  either  modesty  or  obscenity. 
Thus  it  will  be  proven  that  the  only  unifying  element  common 
to  all  conceptions  of  modesty  or  of  obscenity  must  be  subjective 
— must  be  in  the  mind  of  the  contemplating  person,  not  in  the 
thing  contemplated.  Expressed  in  popular  English,  the 
proposition  is  this:  All  obscenity  is  in  the  viewing  mind,  not 
in  the  book  or  picture.  Since  "obscene"  does  not  generalize 
any  fact  of  objective  nature,  it  becomes  impossible  to  define 
it  in  terms  of  the  qualities  of  a  book  or  picture,  or  in  any 
terms  whatever  that  furnish  a  certain  or  uniform  standard, 
the  application  of  which  compels  such  uniformity  of  judgment 
that  every  one  can,  with  unquestionable  certitude,  determine 
in  advance  just  what  must  be  the  judgment  of  every  court  or 
jury  as  to  the  obscenity  of  any  given  book  or  picture.  Later, 
it  will  be  argued  that  because  of  this  uncertainty  the  statute 
is  unconstitutional. 

THE    ETHNOGRAPHIC    FACTORS. 

Perhaps  it  is  best  to  begin  our  study  of  modesty  and 
nudity  with  a  statement  of  conditions  in  ancient  Greece 
when  its  civilization  had  reached  that  high  place  which,  in 
some  respects,  we  have  not  yet  excelled.  In  all  that  follows 
we  are  always  to  bear  in  mind  that  we  are  inquiring  into  the 
innateness  and  uniformity  of  the  human  sense  of  modesty 
and  obscenity,  to  see  if  it  is  possible  to  know  from  the  mere 
reading  of  the  statutes  penalizing  "obscene,  indecent,  filthy 
or  disgusting"  books  or  pictures,  what  conception  of  mod- 
esty, or  what  kind  and  degree  of  sex-sensitiveness,  determines 
what  is  prohibited. 

In  Greece,  "it  was  lawful  in  some  cities  for  courtezans 

258 


ETHNOGRAPHIC   STUDY   OF   MODESTY  AND  OBSCENITY. 

to  wear  light,  transparent  garments ;  but  at  Sparta,  as  may  be 
imagined,  the  reverse  was  the  rule,  semi-nudity  being  the 
badge  of  virtuous  women."26 

This  is  further  illustrated  in  the  fact  that  in  their  athletic 
games  and  dances  the  virtuous  maidens  appeared  publicly 
in  the  nude  and  none  were  sufficiently  polluted  with  prurient 
prudery  to  criticize.  On  this  subject  the  Rev.  John  Potter, 
late  Archbishop  of  Canterbury,  has  this  to  say:  "As  for  the 
virgins  appearing  naked,  there  was  nothing  disgraceful  in  it 
because  everything  was  conducted  with  modesty,  and  without 
one  indecent  word  or  action.  Nay,  it  caused  a  simplicity  of 
manners  and  an  emulation  of  the  best  habit  of  body;  their 
ideas,  too,  were  naturally  enlarged,  while  they  were  not  ex- 
cluded from  their  share  of  bravery  and  honour.  Hence  they 
were  furnished  with  sentiments  and  language  such  as  Gorgo, 
the  wife  of  Leonidas,  is  said  to  have  made  use  of.  When  a 
woman  of  another  country  said  to  her:  'You  of  Lacedaemon 
are  the  only  women  in  the  world  that  rule  the  men/  she 
answered :  'We  are  the  only  women  that  bring  forth  men/  "2T 

Among  the  native  Mexicans,  who  in  many  respects  had 
attained  a  higher  civilization  than  their  Spanish  conquer- 
ors, it  was  found,  in  and  before  the  I7th  century,  that  the 
maidens  went  naked  and  only  those  who  had  parted  with 
virginity  covered  the  sexual  parts.28 

NUDITY  AND   MODESTY  AMONG   PRIMITIVE   PEOPLE  OF   MORE 
RECENT  TIMES. 

Certain  Mohammedan  women  who  can  easily  be  induced 
to  expose  their  naked  bodies  to  the  male  gaze  are  most  per- 
sistent in  their  refusal  to  uncover  their  faces.  Chinese  women, 
who  are  not  shocked  by  the  exposure  of  the  sexual  parts, 
would  have  their  modesty  offended  to  quite  an  unbearable 
degree  if  compelled  to  expose  their  naked  feet,  even  to  one 
of  their  own  sex.  There  are  tribes  who  wear  but  little  cloth- 
ing, but  who  consider  it  "indecent"  to  eat  in  each  other's 
presence,  and  even  members  of  the  same  family  turn  their 
backs  toward  each  other  during  meals.  Among  the  Japanese, 
where  women  perform  the  national  dance  in  nudity,  it  was 
found  at  the  Jubilee  Exhibition  at  Kyote  that  disgust  was 
provoked  by  a  painting  of  a  naked  woman,  though  in  nature 
.nudity  was  in  no  way  offensive  to  them.  In  Lapland 

Danger's  History  of  Prostitution,  46. 

'aArchaeologia  Graeca,  p.  645,  Glasgow,  1837. 

MV.   3,  Bayle's  Historical  and  Critical  Dictionary,  774.    Edition  of  1734. 

259 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

woman  who  would  prostitute  themselves  cheaply,  will  not 
for  a  large  fee  expose  themselves  before  a  camera.  The 
well-bred  African  negress  is  most  anxious  to  conceal  her 
breasts  in  modesty,  and  exhibits  shame  even  when  discovered 
suckling  her  babe.  Many  civilized  women  are  utterly  in- 
different to  this,  as  one  may  see  in  the  parks  of  any  large  city. 
So  also  the  Arabs,  who  are  pederasts,  yet  refuse  to  exhibit 
their  nude  bodies.  In  several  tribes,  it  is  as  with  the  Naga 
women,  who  cover  only  their  breasts.  They  declare  that  it 
is  absurd  to  cover  those  parts  of  the  body  which  every  one 
has  been  able  to  see  from  their  birth,  but  it  is  different  with 
the  breasts,  which  come  later,  and  are  therefore  to  be  covered. 
Some  primitive  people,  who  unhesitatingly  go  about  naked, 
still  conceal  themselves  during  copulation ;  others  indulge 
openly  and  are  not  in  the  least  affected  by  publicity.2*  If  the 
tests  of  obscenity,  decency  and  modesty  are  a  "matter  of 
common  knowledge,"  why  such  varying  conceptions,  and 
where  is  the  statutory  test  of  "obscenity"  which  informs  us 
as  to  which  of  the  foregoing  conceptions  of  modesty  was  in- 
corporated into  the  statute  ? 

In  several  countries,  the  consummation  of  the  marriage 
by  coitus  in  public  is  a  part  of  the  ceremony.30  Among  the 
Otaheitans,  even  recently,  a  girl  is  initiated  into  the  sex- 
experience  under  the  direction  of  a  priestess  as  a  solemn  re- 
ligious ceremony  and  in  the  view  of  a  thousand.  The  queen 
gives  to  her  and  her  companion,  publicly,  instructions  as  to 
the  proper  manner  of  its  consummation.  This  is  done  with 
solemnity  and  prayer  and  without  anything  like  either  the  leer 
of  our  stable  boys  or  the  blush  of  our  prudes.81 

Among  some  peoples  modesty  forbids  the  exposure  of 
the  male  organ  of  generation  while  permitting  complete 
female  nudity,  and  among  others  the  conditions  are  reversed. 
From  Australia  it  is  reported  that  women  who  did  not  hesi- 
tate much  at  exposing  themselves  in  utter  nudity,  yet  with- 
drew to  a  secluded  place  to  remove  their  scant  covering. 
Among  some  East  African  tribes  the  sentiment  of  modesty 
seems  to  center  about  the  menstrual  period.  The  Samoyed 
women  for  two  months  after  marriage  conceal  their  faces 
from  their  husbands  and  only  then  yield  to  their  embraces. 
In  some  places  women  have  been  allowed  to  go  naked  until 

"Ellis'  Modesty,  and  Bebel's   Women  Under  Socialism,   18.  citing  Bachofen, 

*°Ellis'  Modesty,  p.  17,  and  others. 

"We  strop's  Primitive  Symbolism,  pp.  89-40. 

260 


ETHNOGRAPHIC    STUDY   OF   MODESTY   AND  OBSCENITY. 

they  were  married  and  required  to  wear  clothes  after  mar- 
riage. Among  the  Montana  Indians,  where  the  women  readily 
prostitute  themselves  for  a  small  consideration,  they  often 
exhibit  extraordinary  sensitiveness  to  a  physician's  examina- 
tion. The  Adamanes  women  "are  so  modest  they  will  not 
renew  their  fig-leaf  aprons  in  the  presence  of  one  another." 
In  Masai  it  is  considered  as  disreputable  to  conceal  the  phallus 
as  it  is  to  display  it  ostentatiously.  This  will  to  some  seem 
a  very  healthy-minded  attitude,  which  stands  in  great  con- 
trast to  the  following  example  of  modesty. 

"Native  women  of  India  have  committed  suicide  rather 
than  submit  to  examination  by  state  surgeons  under  the 
English  Government"  [under  a  law  regulating  prostitution].** 

"The  Hindoos  have  a  species  of  adultery,  which  with  us 
would  be  considered  mere  flirtations:  First,  if  a  couple  wink 
or  smile,  converse  together  in  an  unfrequented  place,  or 
bathe  in  the  same  pool;  second,  if  a  man  sends  sandlewood, 
victuals,  drink  or  other  presents  to  a  female;  the  third  sort 
seems  the  most  serious,  namely,  when  a  man  and  woman 
sleep  and  dally  on  the  same  carpet,  kiss  and  embrace,  and 
then  seek  some  retired  place,  the  woman  saying  nothing  all 
the  while.  The  punishments  prescribed  by  the  shaster  for 
adultery  are  too  barbarous  for  enumeration."35 

"It  is  related  by  Dr.  Tournefort  that  in  a  Turkish  harem 
he  was  allowed  to  see  only  the  arm  of  a  sick  female  pro- 
truded through  a  screen,  without  further  opportunity  for 
determining  the  nature  of  the  malady."36 

We  are  in  the  habit  of  denouncing  Turkish  polygamy 
as  indecent  and  an  argument  in  its  favor  probably  could  not 
be  sent  through  the  mails.  Yet  these  Turks  outdo  us  all 
when  it  comes  to  prudery.  Where  does  the  statute  furnish 
the  standard  of  judgment  as  between  these  conflicting 
pruderies  ? 

VARIETIES   OF    CHRISTIAN    MODESTY. 

Here  we  will  exhibit  a  variety  of  differing  conceptions  of 
modesty  as  they  are  found  among  Christian  people.  The 
purpose  is  always  to  be  borne  in  mind,  and  it  is  to  show: 
First,  that  no  particular  conception,  standard  or  focus  of 
modesty  is  a  part  of  our  human  nature  (innate  in  us),  and 
second,  that  therefore  in  each  individual  his  own  notions  of 

"Unmasked,  Dr.  Mary  Walker,  p.  US. 
"Woman,  Past  and  Present,  p.  828. 
"Woman,  Past  and  Present,  p.  10. 

26l 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

modesty  are  determined  by  his  educated  emotional  and 
ideational  associations  and  the  degree  of  his  sexual  hyper- 
aestheticism.  Keeping  this  purpose  in  mind,  let  us  review  the 
historical  evidences. 

Among  the  early  Christian  Fathers  we  find  many  evi- 
dences that  bundling,  often  in  nudity,  was  a  widespread 
custom,  even  among  monks  and  nuns  vowed  to  chastity. 
The  practise  always  resulted  in  suspicion  and  no  doubt  quite 
frequently  in  something  more  real.  Chrysostom,  Jerome  and 
Tertullian  all  write  of  it. 

The  Rev.  Dr.  Ruffner,  after  quoting  these  fathers  and 
other  evidences,  summarized  his  conclusions  as  follows: 
"The  practise  of  unmarried  men — some  of  them  clergymen — 
and  consecrated  virgins  lying  together,  seems  to  have  pre- 
vailed to  a  considerable  extent  even  at  this  early  period;  but 
then  the  parties  professed  that  there  was  no  harm  in  it,  seeing 
that  there  was  all  the  while  a  chaste  familiarity,  a  purely 
spiritual  conjunction."37 

"Some  confessors,  like  Robert  d'Arbissell  (and  the  same 
has  been  said  of  Ardhelm,  the  English  Saint,  who  lived  be- 
fore the  conquest),  have  induced  young  women  to  lie  with 
them  in  the  same  beds,  giving  them  to  understand  that  if  they 
could  prove  superior  to  every  temptation  and  rise  from  the 
bed  as  they  went  to  it,  it  would  be  in  the  highest  degree 
meritorious."88 

Writing  on  the  earlier  period,  Gibbon  states  this:  "The 
primitive  church  was  filled  with  a  great  number  of  persons  of 
either  sex  who  had  devoted  themselves  to  the  profession  of 
perpetual  chastity.  A  few  of  these,  among  whom  we  may 
reckon  the  learned  Origen,  judged  it  the  most  prudent  to  dis- 
arm the  tempter  [by  self-castration].  Some  were  insensible 
and  some  were  invincible  against  the  assaults  of  the  flesh. 
Disdaining  an  ignominious  flight,  the  virgins  of  the  warm 
climate  of  Africa  encountered  the  enemy  in  the  closest  en- 
gagement ;  they  permitted  priests  and  deacons  to  share  their 
bed,  and  gloried  amidst  the  flames  in  their  unsullied  purity."8* 

Washington  Irving  tells  us  of  the  bundling  habit  in  New 
England  as  "a  superstitious  rite  observed  by  the  young  peo- 
ple of  both  sexes,  with  which  they  usually  terminated  their 

"Ruffner's  Fathers  of  the  Desert,  227-232-237-238;  Gibbon's  History  of 
Christianity,  p.  161,  and  authorities  cited. 

UA  Paraphrase  on  Historia  Flagellatium,  p.  246. 
"Gibbon's  History  of  Christianity,  p.  161. 

262 


ETHNOGRAPHIC   STUDY   OF   MODESTY  AND  OBSCENITY. 

festivities,  and  which  was  kept  up  with  religious  strictness  by 
the  more  bigoted  and  vulgar  part  of  the  community."4* 

The  practise  was  permitted  by  the  Puritans  and  found 
defenders  among  the  clergy  as  a  custom  that  prevailed  "among 
all  classes,  to  the  great  honor  of  the  country,  its  religion,  and 
ladies."41 

Tolstoi  tells  us  that  in  parts  of  Christian  Russia  young 
people,  during  the  years  of  betrothal,  spend  their  nights  to- 
gether without  losing  their  virginity.  To  him  it  illustrates 
the  blessed  possibility  of  spiritual  communion,  untainted 
by  fleshly  desire.42 

If  memory  serves  me,  Tacitus  informs  us  that  in  his  time 
the  Germans  customarily  went  naked  and  that  their  morals 
were  exemplary  compared  with  those  of  the  Romans.  A  recent 
author  informs  us  that:  "The  shirt  began  to  be  worn  [in 
Germany]  in  the  sixteenth  century.  From  this  fact  as  well 
as  from  the  custom  of  public  bathing,  we  reach  the  remark- 
able result  that  for  the  German  people  the  sight  of  complete 
nakedness  was  the  daily  rule  up  to  the  sixteenth  century." 
At  their  public  dances  exposures  were  quite  unrestricted.4* 

We  find  several  times  among  Christian  sects  that  pro- 
miscuous nudity  was  made  a  virtue  and  duty  among  them. 

One  such  sect  existed  in  the  second  century.  Theodpret, 
Baronius  Danaeus  and  St.  Epiphaneus  all  mention  them, 
as  conducting  their  devotional  exercises  in  complete  nudity, 
and,  according  to  some,  those  were  expelled  from  the 
congregations  who  did  not  remain  continent.  Upon  this  last 
there  is  disagreement.44 

During  the  earliest  days  of  Christianity  women  were 
baptized  quite  nude  and  by  men  in  the  presence  of  men, 
their  bodies  being  afterward  anointed  with  oil  by  the  priests. 
One  of  the  earliest  chisms  in  the  church  arose  from  the  pro- 
test of  women  against  this  practise,  and  a  demand  that  they 
be  allowed  to  baptize  their  own  sex  and  the  opposition  of 
priests  to  that  demand.48 

"Knickerbocker  Hist,  of  N.  Y.  4  Am.  ed.  p.  211 ;  Stiles'  Bundling,  p.  49. 

"Stiles'  Bundling,  pp.   51-58. 

42Die  Sexuelle  Frage,  36-38. 

^Rudeck,  Geschichte  der  offentliche  Sittlichkeit,  p.  399. 

**V.  1,  Bayle's  Dictionary,  pp.  110-111,  edition  of  1734,  and  citations;  1, 
Heckethorn's  Secret  Societies  of  All  Ages  and  Countries,  pp.  95-96;  Gage,  Woman, 
Church  and  State,  92;  Two  Essays  on  the  Worship  of  Priapus,  pp.  172-174,  and 
authorities. 

"Gage,  Woman,  Church  and  State,  215,  citing  Waite's  Hist,  of  the  Christian 
Religion  to  A.  D.  200,  pp.  23,  384,  385;  Benson's  Christianity  of  Mankind,  vol.  3, 
886-393,  vol.  3;  Analecta;  Philosophical  Dictionary;  Pike's  History  of  Crime  in 
England,  and  citations. 

263 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

Ciampini  gives  a  large  plate  representing  the  baptism 
of  Agilulf  and  Theodelinda,  King  and  Queen  of  the  Longo- 
bards,  A.  D.  591,  where  they  both  appear  naked  in  the  font, 
with  nothing  but  their  crowns  on,  and  the  water  is  poured 
over  their  heads  from  a  pitcher.46 

Catherine,  the  first  wife  of  Peter  the  Great,  was  received 
into  the  Greek  Christian  Church  by  a  similar  rite.  New  con- 
verts to  that  church  are  plunged  three  times,  naked,  in  a 
river  or  in  a  large  tub  of  cold  water.  Whatever  is  the  age  or 
sex  of  the  convert  this  "indecent  ceremony  is  never  dispensed 
with.  The  effrontery  of  a  pope  (priests  of  the  Greek  Church 
are  thus  called)  sets  at  defiance  all  the  reasons  which  decency 
and  modesty  never  cease  to  use  against  the  absurdity  and  im- 
pudence of  this  shameful  ceremony."47 

The  Beghards  became  a  distant  offshoot  from  the  Fran- 
ciscan Monks  in  the  14th  century,  for  the  purpose  of  practis- 
ing still  greater  austerities.  The  Beghards  and  another  order 
known  as  the  Beguines  came  under  the  influence  of  the  Breth- 
ren and  Sisters  of  the  Free  Spirit.  Of  those  we  have  some 
very  interesting  accounts.  Mosheim  says:  "And  they  alone 
were  deemed  perfect  by  these  fanatics  and  supposed  to  be 
united  to  the  supreme  being  who  could  behold,  without  any 
emotion,  the  naked  bodies  of  the  sex  to  which  they  did  not 
belong  and  who,  and  in  imitation  of  what  was  practised  be- 
fore the  fall  by  our  first  parents,  went  entirely  naked  and 
conversed  familiarly  in  this  manner  with  males  and  females 
without  feeling  any  tender  propensities  of  nature.  Hence  it 
was  that  the  Beghards  (as  they  were  nicknamed)  when  they 
came  into  their  religious  assemblies  and  were  present  at  the 
celebration  of  divine  worship,  appeared  without  any  veil  or 
covering  whatever."48 

The  late  William  Hepworth  Dixon,  once  the  distin- 
guished editor  of  the  London  Athenaeum,  gives  us  a  most  in- 
teresting account  of  these  people.49 

In  the  1 3th  century  they  became  known  as  the  Adamites 
or  Picards.  Under  the  leadership  of  Picard,  if  not  before  and 
if  not  in  other  branches,  the  ascetic  restraint  of  continence 
was  abandoned  under  the  doctrine  of  perfectionism.80 

46Lundy,  Chapter  on  Baptism,  Monumental  Christianity,  389. 
''Count  Segur,  in  Woman's  Condition  and  Influence  in  Society,  here  requoted 
from  Woman,  Church  and  State,  216. 

"Mosheim  Bed.  Hist,  p.377,  Bait.  ed.  1833. 

"Spiritual  Wives,  Chap.  14.     See  also  Lea's  Hist,  of  the  Inquisition,  123-407. 

•°4,  Bayle's  Historical  and  Critical  Dictionary,  p.  628. 

264 


ETHNOGRAPHIC    STUDY    OF    MODESTY    AND  OBSCENITY. 

At  Amsterdam  in  1538  a  dozen  religious  zealots,  men 
and  women  belonging  to  the  Anabaptists,  went  out  upon  the 
streets  in  nudity,  and  "they  did  not  so  much  as  leave  a  ribbon 
upon  their  heads  to  keep  their  hair  tied."51 

Within  the  past  two  decades  we  have  seen  a  Russian 
Quaker  sect  of  Canada  called  Doukhobors  making  pilgrim- 
ages in  large  numbers,  both  men  and  women  being  in  entire 
nudity.82 

MODESTY    OF    ANOTHER    EXTREME. 

"In  the  rules  laid  down  by  Augustine,  he  ordains  that  no 
one  shall  ever  steadfastly  fix  her  eyes  upon  another,  even  of 
the  same  sex,  as  this  is  a  mark  of  immodesty."53 

Ammon  and  his  wife,  it  is  reported,  renounced  the  secular 
life  and  inhabited  one  common  ascetic  apartment  in  the 
mountains  of  Nitria.  Uneasiness  finally  prompted  the  bride 
to  address  her  husband  as  follows:  "It  is  unsuitable  for  you 
who  profess  chastity,  to  look  upon  a  woman  in  so  confined  a 
dwelling.  Let  us,  therefore,  if  it  is  agreeable  to  you,  perform 
our  exercises  apart."  He  concurred.64 

Ligouri65  in  prescribing  the  requirements  of  modesty, 
which  some  people  in  "good  society"  still  follow,  while  others 
sneer  at  it,  says :  "A  religious  must  practise  modesty  in  sitting 
....  she  must  avoid  every  slothful  posture  and  must  abstain 
from  crossing  her  feet  and  putting  one  leg  on  the  other."88 

In  Rome,  at  one  period,  "their  sexual  delicacy  was  in- 
deed extreme,  if  the  anecdote  of  Manlius  be  only  moderately 
authentic.  This  patrician  and  senator  had  only  inadvertently 
saluted  his  wife  in  the  presence  of  his  daughters,  and  for  this 
indulgence  he  was  by  the  censors  accused  of  indecency. 
After  grave  deliberations  on  the  corruptive  tendency  of  such 
open  osculation  to  the  rising  generation,  they  struck  him  off 
the  list  of  their  order."57 

In  a  publication  at  the  end  of  the  i7th  century,  this  state- 
ment is  found:  "This  world  too  much  allows  nakedness  in 
women.  *  *  *  *  The  faulty  abuse  is  strengthened 

"4,  Bayle's  Historical  and  Critical  Dictionary,  628. 
^Maude's  A   Peculiar  People,   241. 
"Hardy's  Eastern  Monasticism,  p.  64. 
••Day's  Monastic  Institutions,  p.  5. 
MIn   True  Spouse   of  Christ,   Chap.   VIII,    See's    1-11. 
••Day's  Monastic  Institution,  p.  266. 

"Woman,  Past  and  Present,  29.  Lecky's  Hist,  of  European  Morals,  T  *, 
1P-800. 

265 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

through  a  long  use,  and  now  passed  into  a  custom  so  general 
that  it  has  become  common  almost  to  all  women  and  maids 
of  all  sorts  of  conditions.  *  *  *  *  Even  at  the  foot  of 
the  altar  and  in  the  very  tribunals  of  penance,"  they  came 
"half-naked" !  The  protesting  priest  begs  that  they  "at 
least  make  some  difference  betwixt  the  house  of  the  Lord 
*  *  *  *  and  those  which  are  profaned  by  the  libertinism 
of  the  age."58 

In  the  portraits  of  that  period  we  find  ladies  of  quality 
freely  exposing  their  entire  bosom.  A  modified  remnant  of 
this  custom  is  found  in  the  evening  dress  of  our  fashionable 
women,  by  which  some  people  are  still  shocked.  Now,  then, 
what  is  the  degree  of  statutory  sexual  delicacy  which  limits 
criminality?  Where  between  the  waist  and  the  face,  does  the 
statute  draw  the  line  beyond  which  nudity  offends  modesty? 
Where  is  the  statutory  test  of  criminality  which  would  pro- 
tect the  accused  against  such  extreme  prudery,  and  why  is 
there  any  such;  is  "common  knowledge"  upon  the  subject 
sufficiently  uniform  to  make  unnecessary  a  statutory  defini- 
tion of  "obscene"? 

At  the  close  of  the  i8th  century,  we  find  a  book  written 
"Chiefly  on  the  Profligacy  of  our  Women  and  its  Causes." 
As  showing  what,  in  the  opinion  of  that  author,  "tended  to 
deprave  morals,"  we  may  extract  a  few  sentences.  He 
says :  "For  the  same  reason  that  public  schools  are  proper  for 
boys,  they  are  unfit  for  girls.  *  *  *  Though  a  girl's  ideas 
be  pure  as  angel's  on  her  entrance  into  a  boarding  school,  she 
cannot  remain  there  any  time  without  being  as  knowing  in 
the  ways  of  pollution  as  any  nymph  in  the  King's  palace." 
Further  on  our  author  says :  "I  cannot  bear  to  see  a  woman 
of  fashion  sit  down  to  a  harpsichord  at  a  public  concert  and 
hear  her  clapped  by  strangers  on  finishing  her  tune."  The 
reading  of  fiction  is  denounced  because  "novels  are  full  of 
warm  descriptions  run  entirely  on  the  subject  of  love,"  etc. 
Upon  the  subject  of  having  a  male  physician  attend  upon  a 
woman  during  child-birth,  this  author  says  that  "the  prac- 
tise is  repugnant  to  every  idea  of  modesty,  delicacy  and 
decency.  *  *  *  *  To  suppose  any  more  art  necessary 
than  what  can  be  taught  by  experience,  would  be  to  arraign 
the  goodness  and  wisdom  of  the  Almighty.  *  *  *  * 
Infamous  as  the  adultress  is,  her  crimes  admit  of  extenuation, 

•M  Just  and  Reasonable  Reprehension  of  Naked  Breasts.     Land.  A.  D.  1678. 

266 


ETHNOGRAPHIC    STUDY    OF    MODESTY   AND  OBSCENITY. 


mnd  she  seems  pure  when  balanced  against  the  pretender  to 
modesty  who  sends  -for  a  doctor  to  be  digitated.  Shame  on  so 
abandoned  a  practise,"  etc.,  etc.59 

Here  then  is  a  man  who  admits  that  they  are  "pure,"  and 
who  tells  us  that  to  educate  women,  to  allow  them  to  play 
musical  instruments  in  public,  and  to  have  a  male  physician 
attend  a  woman  during  parturition,  or  to  argue  that  special 
skill  is  desirable  at  such  times,  all  tend  to  deprave  the  morals 
of  those  who  are  open  to  such  influences;  and  elsewhere  he 
says  that  not  one  is  beyond  such  influence.60  On  these  and 
succeeding  pages  this  extremely  modest  author  strangely 
enough  writes  about  the  means  of  inducing  sexual  excite- 
ment that  which  would  now  be  punished  as  criminally 
"obscene." 

This  same  author61  expresses  opinions  about  the  sinful- 
ness  of  adultery  which  are  logically  peculiar,  but  in  practise 
have  the  endorsement  of  very,  very,  very,  many  men: 
"When  a  married  man  commits  it  [adultery],  he  throws  out 
no  defiance  to  the  world — for  the  world  thinks  too  lightly  of 
the  offense.  He  makes  no  sacrifice  of  character.  A  man 
cannot  sink  to  the  level  with  an  adultress  till  he  has  forsaken 
his  post  in  battle.  Courage  is  the  male  point  of  honor — 
chastity  the  female." 

As  portrayed  by  an  epistle  supposed  to  have  been  writ- 
ten by  Clement  of  Rome,  one  of  the  early  Christian  ideals  of 
modesty  was  indeed  extreme.  The  brethren  and  holy  sisters 
and  maidens  must  not  look  at  one  another  nor  allow  the  naked 
hand  of  one  to  touch  the  uncovered  hand  of  the  other.65  Is 
this  conception  of  modesty  a  matter  of  "common  knowledge" 
and  incorporated  in  the  statute?  If  not,  where  and  what  are 
the  statutory  criteria  of  guilt,  which  exclude  it? 

In  other  places  these  conceptions  of  modesty  were  strange- 
ly blended.  "Women  will  scarce  strip  naked  before  their 
own  husbands,  affecting  a  plausible  pretense  of  modesty," 
writes  Clement  of  Alexandria,  at  the  close  of  the  second 
century,  "but  any  others  who  wish  may  see  them  at  home, 
shut  up  in  their  baths,  for  they  are  not  ashamed  to  strip  be- 
fore the  spectators  as  if  exposing  their  persons  for  sale.  The 

^  "Thoughts  on  the  Times,  (A.  D.  1779),  pp.  85-94-199.  To  the  same  effect 
aee  "Man-midwifery  analyzed  and  the  tendency  of  the  practise  exposed."  Lond. 
1764. 

«°pp.  184  and  190. 
wp.  73. 

"7'tpo  Epistles  Concerning  Virginity,  vol.  XIV,  Antenicene  Christian 
Library,  p.  884. 

267 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

baths  are  opened  promiscuously  to  men  and  women.  Cyprian 
found  it  necessary  to  upbraid  even  virgins  vowed  to  chastitj 
for  continuing  the  custom  of  promiscuous  bathing  in  the 
nude."  For  others  such  promiscuous  bathing  was  the  custom.'* 
"When  we  are  told  that  the  monks  of  the  convent  of 
Mount  Athos  accused  the  monks  of  the  convent  of  a  neigh- 
boring island  with  falling  away  from  grace  because  they 
allowed  hens  [because  being  of  the  female  sex]  to  be  kept 
within  the  convent  enclosure,  we  may  well  believe  that  Ori- 
gines  and  his  monks  [who  castrated  themselves]  felt  that 
they  were  gradually  ascending  in  grace  when  they  submitted 
to  this  sacrifice."67 

MODESTY   AMONG   SOME   WORLDLINGS. 

With  only  a  few  more  illustrations  as  to  the  diversity 
of  human  notions  about  modesty  this  essay  must  be  closed. 
Dr.  Havelock  Ellis  tells  us  of  a  ballet  girl  who  thought  it  im- 
modest to  bathe  in  the  fashion  customary  at  the  sea  shore 
and  cannot  make  up  her  mind  to  do  so,  though  of  course,  she 
every  night  appears  on  the  stags  in  tights.68  Which  of  these 
conceptions  of  modesty  does  "common  knowledge"  compel  us 
to  incorporate  in  the  statute? 

"A  Chinaman,  who  lived  in  England  some  years  since, 
acknowledged  that  on  his  first  arrival  he  felt  some  difficulty  in 
restraining  himself  from  rudeness  to  women  if  left  alone 
with  them,  and  a  nun  that  had  been  reared  in  a  convent  on 
her  first  escape  from  it  imagined  that  every  man  who  had 
opportunity  would  assault  her  virtue."69 

With  the  Chinaman,  accustomed  to  nudity,  secretiveness 
by  the  use  of  clothing  induced  greater  lasciviousness  than 
nudity  would  evoke.  The  nun,  through  perverted  educa- 
tion, expected  lascivious  designs  in  others  when  they  had  no 
existence. 

Krafft-Ebing  tells  of  a  person  so  sex-sensitive  that  in  the 
presence  of  ladies  he  thought  every  expression  he  made  was 
an  offense  against  decency.  Thus,  for  example,  he  thought 
it  very  improper  in  the  presence  of  ladies,  married  or  un- 
married, to  speak  of  going  to  bed,  rising,  etc.70  May  the 

"Ellis's  Psychology  of  Sex,   (Modesty),   19  and   20. 
^History    of   Circumcision,   p.    89. 
^Psychology  of  Sex,   (Modesty)   p.   47. 
"Woman,  Past  and  Present,  p.  212. 
""Psychopothia  Sexualis,  75. 

268 


I 


ETHNOGRAPHIC   STUDY   OF   MODESTY  AND  OBSCENITY. 

statutory  "obscenity"  be  determined  and  a  verdict  of  guilt 
found  by  such  persons,  and  if  not  why  not? 

"I  have  several  times  observed  in  hysterical  females 
scruples  relative  to  the  satisfaction  of  natural  needs,  to  the 
action  of  chewing,  eating,  micturation,  defecation,  which 
have  all  come  to  be  regarded  as  revolting  acts,  which  must  be 
dissembled  like  crimes."71 

The  present  law  does  not  in  the  slightest  degree  protect 
one  accused  of  obscenity  from  the  whim  and  caprice  of  judges 
or  jurors  who  may  be  thus  afflicted  with  extraordinary  sexual 
sensitiveness.  Even  the  "tests  of  obscenity"  created  by  judi- 
cial legislation  leave  the  criteria  of  guilt  just  as  much  in 
doubt. 

By  evidences  gathered  from  similar  sources  it  can  be 
demonstrated  that  there  is  not  one  single  fact  of  obscenity 
concerning  which  all  humanity  is  agreed.  Even  what  is  to 
us  the  most  revolting  "obscenity"  is  not  so  to  all  persons. 
Every  known  form  of  sexual  perversion,  from  sadism,  lust, 
murder,  up  and  down,  has  been  credited  with  the  endorsement 
of  some  god  and  practised  and  sanctified  by  some  religious 
society.  Those  who  want  proof  of  the  fact  need  only  to  make 
themselves  fairly  expert  in  sexual  psychopathy,  and  then 
study  all  the  facts  of  sex-worship  among  the  ancient  Greeks 
and  Egyptians,  also  the  old  initiations  into  the  priesthoods  of 
the  native  Mexican  religions,  and  the  sacred  snake  dance 
among  the  Moquis.  If  proof  is  wanted  as  to  its  expression 
in  art,  we  have  it  in  the  secret  Cabinet  of  the  Museum  of  Her- 
culaneum  and  Pompeii  and  other  places.  If  doubt  still  re- 
mains it  only  becomes  necessary  to  get  the  confidence  of  one 
whose  sexual  impulse  has  become  completely  perverted,  and 
ask  such  a  one  about  his  shame  when  indulging  only  in  the 
presence  of  those  who  are  perverted  like  himself. 

Within  the  available  limits  one  can  only  hint  at  the 
source  and  character  of  the  evidence  which  contradicts  the 
judicial  dictum  upon  the  questions  of  science  here  involved. 
To  exhaust  the  evidence  would  require  a  republication  of 
volumes  of  ethnographical  research,  and  most  of  the  litera- 

T1  Moral    Hypochondria.      Fere.    Pathology    of    the    Emotions,    n.    389. 

269 


OBSCENE   LITERATURE    AND   CONSTITUTIONAL    LAW. 

ture  upon  sexual  psychology.     The  principal  books  upon  the 
latter  subject  are  listed  for  further  study.72 

Additional  arguments  will  be  offered  in  the  succeeding 
chapters  to  demonstrate  anew  the  subjective  character  of  all 
that  is  generalized  in  the  word  "obscene"  and  the  consequent 
unescapable  uncertainty  of  the  criteria  of  guilt  under  these 
obscenity  statutes. 

nPsychopathia  Sexualis  by  Krafft-Ebing.  Suggestive  Therapeutics  in  Rela- 
tion to  Psychopathia  Sexualis,  Schenk  Notzing..  Morbid  Manifestations,  by  Tar- 
nowsky.  Studies  in  the  Psychology  of  Sex,  by  Dr.  Havelock  Ellis,  and  especially 
that  volume  devoted  to  "Modesty."  This  literature,  by  exhibiting  the  infinite 
variety  of  foci  about  which  center  the  sentiments  of  modesty,  prove  to  a  demon- 
stration that  we  have  no  innate  sense  of  modesty,  nor  any  common  standards  by 
which  to  determine  its  opposite,  nor  any  uniformity  in  the  ideas  which  excite  in  us 
those  emotions  of  aversion  which  constitute  our  conviction  that  a  book  or  picture 
is  obscene. 


270 


CHAPTER  XIV. 

'SYCHOLOGIC  STUDY  OF  MODESTY  AND 
OBSCENITY. 

Syllabus  of  the  Argument:  Through  a  study  of  the 
mental  processes  by  which  we  acquire  the  general  idea  sym- 
bolized by  the  word  "obscene",  (or  its  opposite)  and  of  those 
by  which  we  usually  form  a  judgment  as  to  the  modesty  or 
obscenity  in  a  particular  case,  it  will  be  redemonstrated  that  the 
word  "obscene"  does  not  stand  for  any  sense-perceived  quality 
of  literature  or  art  but  is  distinguished  only  by  the  likeness 
or  unlikeness  of  particular  emotions  associated  with  an  in- 
finite variety  of  mental  images.  Therefore,  obscenity  is  only 
a  quality  or  contribution  of  the  viewing  mind — a  subjective 
state — which,  by  synchronous  suggestion  or  prior  experience, 
is  linked,  in  the  contemplating  mind,  with  the  particular  mat- 
ter presented  by  the  contemplated  book  or  picture  or  with  the 
special  conditions  under  which  these  are  being  viewed.  When 
this  association,  thus  formed,  asserts  itself  in  consciousness 
the  subjective  "obscene"  attachment  is  erroneously  ascribed 
to  and  read  into  the  objective  factor  of  its  conceptual  associate. 
All  this  is  only  a  technical  way  of  telling  how  the  "obscenity" 
of  the  viewing  mind  is  referred  to  the  book  or  picture  before  it. 

As  supporting  these  claims  we  see  the  fact  that  "ob- 
scenity" never  has  been,  nor  can  be,  described  in  terms  of  any 
universally  applicable  test,  consisting  of  the  sense-perceived 
qualities  of  a  book  or  picture,  but  ever  and  always  it  must  be 
described  as  subjective,  that  is,  in  terms  of  the  author's  sus- 
pected motive,  or  in  terms  of  dreaded  emotions  imagined  to 
exist  in  the  mind  of  some  superstitious  reader. 

With  some  knowledge  of  the  psychologic  processes  in- 
volved in  acquiring  a  general  conception,  it  is  easy  to  see  how 
courts,  as  well  as  the  more  ignorant  populace,  quite  naturally 
fell  into  the  error  of  supposing  that  the  "obscene"  was  a 
quality  of  literature,  and  not — as  in  fact  it  is — only  a  contribu- 
tion of  the  reading  mind.  By  critical  analysis,  we  can  exhibit 
separately  the  constituent  elements  of  other  conceptions,  as 

271 


OBSCENE    LITERATURE   AND   CONSTITUTIONAL    LAW. 

well  as  of  our  general  idea  of  the  "obscene."  By  a  comparison,, 
we  shall  discover  that  their  common  element  of  unification  may 
be  either  subjective  or  objective.  Furthermore,  it  will  appear 
that  in  the  general  idea,  symbolized  by  the  word  "obscene," 
there  is  only  a  subjective  element  of  unification,  which  is  com- 
mon to  all  obscenity,  and  that  herein  it  differs  from  most  gen- 
eral terms.  In  the  failure  to  recognize  this  fundamental  un- 
likeness  between  different  kinds  of  general  ideas,  we  shall  dis- 
cover the  source  of  the  popular  error,  that  "obscenity"  is  a 
definite  and  definable,  objective  quality  of  literature  and  art. 

THE  PSYCHOLOGIC  ARGUMENT. 

A  general  idea  (conception)  is  technically  defined  as  "the 
cognition  of  a  universal,  as  distinguished  from  the  particulars 
which  it  unifies."  Let  us  fix  the  meaning  of  this  more  clearly 
and  firmly  in  our  minds  by  an  illustration. 

A  particular  triangle  may  be  right-angled,  equilateral  or 
irregular,  and  in  the  varieties  of  these  kinds  of  triangles,  there 
are  an  infinite  number  of  shapes,  varying  according  to  the 
infinite  differences  in  the  length  of  their  boundary  lines,  meet- 
ing in  an  infinite  number  of  different  angles. 

What  is  the  operation  when  we  classify  all  this  infinite  va- 
riety of  figures  under  the  single  generalization  "triangle"? 
Simply  this :  In  antithesis  to  those  qualities  in  which  triangles 
may  be  unlike,  we  contrast  the  qualities  which  are  common  to 
all  triangles,  and  as  to  which  all  must  be  alike. 

These  elements  of  identity,  common  to  an  infinite  variety 
of  triangles,  constitute  the  very  essence  and  conclusive  tests 
by  which  we  determine  whether  or  not  a  given  figure  is  to  be 
classified  as  a  triangle.  Some  of  these  essential,  constituent, 
unifying  elements  of  every  triangle  are  now  matters  of  com- 
mon knowledge,  while  others  become  known  only  as  we  de- 
velop in  the  science  of  mathematics.  A  few  of  these  essentials 
may  be  re-stated.  A  plain  triangle  must  enclose  a  space  with 
three  straight  lines ;  the  sum  of  the  interior  angles  formed  by 
the  meeting  of  these  lines  always  equals  two  right  angles ;  as 
one  side  of  a  plain  triangle  is  to  another,  so  is  the  sine  of  the 
angle  opposite  to  the  former  to  the  sine  of  the  angle  opposite 
to  the  latter. 

These,  and  half  a  dozen  other  mathematical  properties  be- 
long to  every  particular  triangle ;  and  these  characteristics,  al- 
ways alike  in  all  triangles,  are  abstracted  from  all  the  infinite 


272 


PSYCHOLOGIC   STUDY   OF   MODESTY   AND  OBSCENITY. 

different  shapes  in  which  particular  triangles  appear ;  and  these 
essential  and  constant  qualities,  thus  abstracted,  are  general- 
ized as  one  universal  conception,  which  we  symbolize  by  the 
word  "triangle." 

Here  it  is  important  to  bear  in  mind  that  these  universal, 
constituent,  unifying  elements,  common  to  all  triangles,  are 
neither  contributions  nor  creations  of  the  human  mind.  They 
are  the  relations  of  the  separate  parts  of  every  triangle  to  its 
other  parts,  and  to  the  whole,  and  these  uniform  relations  in- 
here in  the  very  nature  of  things,  and  are  of  the  very  essence 
of  the  thing  we  call  a  "triangle." 

As  the  force  of  gravity  existed  before  humans  had  any 
knowledge  of  the  law  or  its  operation,  so  the  unifying  ele- 
ments of  all  triangles  exist  in  the  nature  of  things,  prior  to  and 
independent  of  our  knowledge  of  them.  It  is  because  these 
unifying  elements,  which  we  thus  generalize  under  the  word 
"triangle,"  are  facts  of  objective  nature,  existing  wholly  out- 
side of  ourselves,  and  independent  of  us,  or  of  our  knowledge 
of  their  existence,  that  the  word  "triangle"  is  accurately 
definable. 

We  will  now  analyze  that  other  general  term,  "obscene," 
reducing  it  to  its  constituent,  unchanging  elements,  and  we 
shall  see  that,  in  the  nature  of  things,  it  must  remain  incapable 
of  accurate,  uniform  definition,  because,  unlike  the  case  of  a 
triangle,  the  universal  element  in  all  that  is  "obscene"  has  no 
existence  in  the  nature  of  things  objective.  It  will  then  appear 
that,  for  the  want  of  observing  this  difference  between  these 
two  classes  of  general  terms,  judges  and  the  mob  alike  errone- 
ously assumed  that  the  "obscene,"  like  the  "triangle,"  must 
have  an  existence  outside  their  own  emotions,  and,  conse- 
quently, they  were  compelled  to  indulge  in  that  mystifying  ver- 
biage which  the  courts  miscall  "tests  of  obscenity." 

COMMONPLACE    FACTORS  OF  THE  PSYCHOLOGIC   ARGUMENT. 

First  of  all,  we  must  discover  what  is  the  universal  con- 
stituent, unifying  element  common  to  all  obscenity.  Let  us 
begin  with  a  little  introspection,  and  the  phenomena  of  our 
everyday  life.  We  readily  discover  that  what  we  deemed  "in- 
decent" at  the  age  of  sixteen,  was  not  so  considered  at  the  age 
of  five,  and  probably  is  viewed  in  still  another  aspect  at  trie* 
age  of  forty. 

We  look  about  us,  and  learn  that  an  adolescent  maid  has 
her  modesty  shocked  by  that  which  will  make  no  unpleasant 

273 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

impression  upon  her  after  maternity,  and  by  that  which  would 
•  never  shock  a  healthy  physician.  We  know,  also,  that  many 
scenes  are  shocking  to  us  if  viewed  in  company,  and  not  in  the 
least  offensive  when  privately  viewed ;  and  that,  among  dif- 
ferent persons,  there  is  no  uniformity  in  the  added  conditions 
which  change  such  scenes  to  shocking  ones. 

We  see  the  plain  countyman  shocked  by  the  decollete 
gown  of  our  well-bred  society  woman ;  and  she,  in  turn,  would 
be  shocked  into  insensibility  if,  especially  in  the  presence  of 
strange  men,  she  were  to  view  some  pastoral  scenes  which 
make  no  shocking  impressions  upon  her  rustic  critic.  The 
peasant  woman  is  most  shocked  by  the  "indecency"  of  the  so- 
ciety woman's  bare  neck  and  shoulders,  and  the  society  woman 
is  shocked  most  by  the  peasant  woman's  exhibition  of  bare 
feet  and  ankles,  at  least  if  they  are  brought  into  the  city 
woman's  parlor.  We  see  that  women,  when  ailment  suggests 
its  propriety,  quite  readily  undergo  an  unlimited  examination 
by  a  male  physician,  while  with  the  sexes  reversed  much 
greater  difficulty  would  be  experienced  in  securing  submission. 
This  not  because  men  are  more  modest  than  women,  but  be- 
cause other  social  conditions  and  education  have  made  them 
differently  modest. 

It  would  seem  to  follow  that  the  universal  qualities 
which  we  collect  under  the  general  term  "obscene,"  as  its  con- 
stituent elements  are  not  inherent  in  the  nature  and  relations 
of  things  viewed,  as  is  the  case  with  the  triangle.  Taking 
this  as  our  cue,  we  may  follow  the  lead  into  the  realm  of 
history,  ethnology,  sexual  psychology  and  jurisprudence. 
By  illustrative  facts,  drawn  from  each  of  these  sources,  it 
will  be  shown  to  a  demonstration  that  the  word  'obscene" 
has  not  one  single  universal,  constituent  element  in  objective 
nature. 

Not  even  the  sexual  element  is  common  to  all  modesty, 
shame  or  indecency.  A  study  of  ethnology  and  psychology 
shows  that  emotions  of  disgust,  and  the  concept  of  indecency 
or  obscenity,  are  often  associated  with  phenomena  having  no 
natural  connection  with  sex,  and  often  in  many  people  are 
not  at  all  aroused  by  any  phase  of  healthy  sexual  manifesta- 
tion; and  in  still  others  are  aroused  by  some  sensual  associa- 
tions and  not  by  others;  and  these,  again,  vary  with  the  indi- 
vidual according  to  his  age,  education  and  the  degree  of  his 
sexual  hyperaestheticism. 

274 


PSYCHOLOGIC   STUDY   OF   MODESTY    AND  OBSCENITY. 
HYPER  ^ESTHETICISM    AND     EDUCATION. 

Everywhere  we  find  those  who  are  abnormally  sex- 
sensitive  and  who,  on  that  account,  have  sensual  thoughts  and 
feelings  aroused  by  innumerable  images,  which  would  not  thus 
affect  the  more  healthy.  These  diseased  ones  soon  develop 
very  many  unusual  associations  with,  and  stimulants  for,  their 
sex^thought.  If  they  do  not  consider  this  a  lamentable  condi- 
tion, they  are  apt  to  become  boastful  of  their  sensualism.  If, 
on  the  other  hand,  they  esteem  lascivious  thoughts  and  images 
as  a  mark  of  depravity,  they  seek  to  conceal  their  own  shame 
by  denouncing  all  those  things  which  stimulate  sensuality  in 
themselves,  and  they  naturally  and  erroneously  believe  that 
it  must  have  the  same  effect  upon  all  others.  It  is  essential  to 
their  purpose  of  self -protection  that  they  make  others  believe 
that  the  foulness  is  in  the  offending  book  or  picture,  and  not 
in  their  own  thought.  As  a  consequence,  comes  that  persist- 
ence of  reiteration,  from  which  has  developed  the  "obscene" 
superstition,  and  a  rejection — even  by  Christians — of  those 
scientific  truths  in  the  Bible,  to  the  effect  that  "unto  the  pure 
all  things  are  pure,"  etc.  We  need  to  get  back  to  these,  and 
reassert  the  old  truth,  that  in  literal  fact  all  genuine  prudery 
is  prurient. 

The  influence  of  education  in  shaping  our  notions  of  mod- 
esty is  quite  as  apparent  as  is  that  of  sexual  hyperaesthesia. 
We  see  it,  not  only  in  the  different  effects  produced  upon  differ- 
ent minds  by  the  same  stimulants,  but  also  by  the  different 
effects  produced  upon  the  same  person  by  different  objects 
bearing  precisely  the  same  relation  to  the  individual.  When 
an  object,  even  unrelated  to  sex,  has  acquired  a  sexual  associa- 
tion in  our  minds,  its  sight  will  suggest  the  affiliated  idea, 
and  will  fail  to  produce  a  like  sensual  thought  in  the  minds  of 
those  not  obsessed  by  the  same  association. 

Thus,  books  on  sexual  psychology  tell  us  of  men  who  are 
so  "pure"  that  they  have  their  modesty  shocked  by  seeing  a 
woman's  shoe  displayed  in  a  shop  window;  others  have  their 
modesty  offended  by  hearing  married  people  speak  of  retiring 
for  the  night ;  some  have  their  modesty  shocked  by  seeing  in 
the  store  windows  a  dummy  wearing  a  corset;  some  are 
shocked  by  seeing  underwear,  or  hearing  it  spoken  of  other- 
wise than  as  "unmentionables;"  still  others  cannot  bear  the 
mention  of  "legs,"  and  even  speak  of  the  "limbs"  of  a  piano. 
A  book  published  in  England  informs  me  of  some  who  speak 

275 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

of  the  "bosom"  of  a  chicken  because  of  the  immodesty  of 
saying  "breast."  Surely,  we  have  all  met  those  who  are 
afflicted  in  some  of  these  ways. 

Since  the  statutes  do  not  define  "obscene,"  no  one  accused 
under  them  has  the  least  protection  against  a  judge  or  jury 
afflicted  with  such  diseased  sex-sensitiveness,  or  against  more 
healthy  ones  who,  for  want  of  information  about  sexual  psy- 
chology, blindly  accept  the  vehement  dictates  of  the  sexually 
hyperaesthetic  as  standards  of  purity.  But  whether  a  judge 
or  a  juror  belongs  to  either  of  these  classes,  or  rejects  their 
dictum  as  to  what  is  pure  in  literature,  in  any  and  every 
event,  he  is  not  enforcing  the  letter  of  a  general  law,  but 
enacting  and  enforcing  a  particular  ex  post  facto  law  then 
enacted  by  him  solely  for  the  particular  defendant  on  trial. 
What  that  law  shall  be  in  any  case  depends  on  the  experiences, 
education  and  the  degree  of  sex-sensitiveness  of  the  court,  and 
not  upon  any  statutory  specification  of  what  is  criminal. 

Among  more  normal  persons,  we  see  the  same  differ- 
ence as  to  what  is  offensive  to  their  modesty,  depending  al- 
together upon  whether  or  not  they  are  accustomed  to  the  par- 
ticular thing.  That  which,  through  frequent  repetition,  has 
become  commonplace  no  longer  shocks  us,  but  that  which, 
though  it  has  precisely  the  same  relation  to  us  or  to  the  sen- 
sual, is  still  unusual,  or  is  seen  in  an  unusual  setting,  does 
shock  us. 

Some  who  are  passive  if  you  speak  of  a  cow,  are  yet 
shocked  if  you  call  a  bull  by  name.  In  the  human  species,  you 
may  properly  use  the  terms  "men"  and  "women,"  as  differen- 
tiating between  the  sexes,  but  if  you  call  a  female  dog  by 
name,  you  give  offense  to  many.  So,  likewise,  you  may  speak 
of  a  mare  to  those  who  would  take  flight  if  you  called  the  male 
horse  by  name.  With  like  unreason,  you  may  speak  of  an  ox 
or  a  capon  to  everybody,  of  a  gelding  to  very  many,  but  of  a 
eunuch  only  to  comparatively  few,  without  giving  offense.  No 
one  thinks  that  nudity  is  immodest,  either  in  nature  or  in  art, 
except  the  nudity  of  the  human  animal ;  and  a  few  are  not 
opposed  to  human  nudity  in  art,  but  find  it  immodest  in  nature. 

The  Agricultural  Department  of  the  United  States  dis- 
tributes information  on  the  best  methods  for  breeding  domes- 
tic animals,  and  sends  those  to  jail  who  advocate  the  higher 
stirpiculture,  for  the  sake  of  a  better  humanity,  if  they  are 
equally  specific  in  the  manner  of  treating  the  subject  or  advo- 
cate the  adoption  of  the  same  method  for  improving  humanity. 

276 


PSYCHOLOGIC   STUDY   OF   MODESTY   AND   OBSCENITY, 
THE  ONLY     UNIFYING  ELEMENT  IS  SUBJECTIVE. 

It  thus  appears  that  the  only  unifying  element  generalized 
in  the  word  "obscene,"  (that  is,  the  only  thing  common  to 
every  conception  of  obscenity  and  indecency),  is  subjective,  is 
an  affiliated  emotion  of  disapproval.  This  emotion  under  vary- 
ing circumstances  of  temperament  and  education  in  different 
persons,  and  in  the  same  person  in  different  stages  of  develop- 
ment, is  aroused  by  entirely  different  stimuli,  and  by  fear  of 
the  judgment  of  others,  and  so  has  become  associated  with 
an  infinite  variety  of  ever-changing  objectives,  with  not  even 
one  common  characteristic  in  objective  nature;  that  is,  in  liter- 
ature or  art. 

Since  few  men  have  identical  experiences,  and  fewer  still 
evolve  to  an  agreement  in  their  conceptional  and  emotional 
associations,  it  must  follow  that  practically  none  have  the  same 
standards  for  judging  the  "obscene,"  even  when  their  conclu- 
sions agree.  The  word  "obscene,"  like  such  words  as  delicate, 
ugly,  lovable,  hateful,  etc.,  is  an  abstraction  not  based  upon  a 
reasoned,  nor  sense-perceived,  likeness  between  objectives,  but 
the  selection  or  classification  under  it  is  made,  on  the  basis  of 
similarity  in  the  emotions  aroused,  by  an  infinite  variety  of 
images ;  and  every  classification  thus  made,  in  turn,  depends  in 
each  person  upon  his  fears,  his  hopes,  his  prior  experience, 
suggestions,  education,  and  the  degree  of  neuro-sexual  or 
psycho-sexual  health.  Because  it  is  a  matter  wholly  of  emo- 
tions, it  has  come  to  be  that  "men  think  they  know  because 
they  feel,  and  are  firmly  convinced  because  strongly  agitated." 

This,  then,  is  a  demonstration  that  obscenity  exists  only  in 
the  minds  and  emotions  of  those  who  believe  in  it,  and  is  not 
a  quality  of  a  book  or  picture.  Since,  then,  the  general  con- 
ception "obscene"  is  devoid  of  every  objective  element  of 
unification;  and  since  the  subjective  element,  the  associated 
emotion,  is  indefinable  from  its  very  nature,  and  inconstant  as 
to  the  character  of  the  stimulus  capable  of  arousing  it,  and 
variable  and  immeasurable  as  to  its  relative  degrees  of  inten- 
sity, it  follows  that  the  "obscene"  is  incapable  of  accurate 
definition  or  a  general  test  adequate  to  secure  uniformity  of 
result,  in  its  application  by  every  person,  to  each  book  of 
doubtful  "purity." 

Being  so  essentially  and  inextricably  involved  with  human 
emotions  that  no  man  can  frame  such  a  definition  of  the  word 


277 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

"obscene,"  either  in  terms  of  the  qualities  of  a  book,  or  such 
that,  by  it  alone,  any  judgment  whatever  is  possible,  much  less 
is  it  possible  that  by  any  such  alleged  "test"  every  other  man 
must  reach  the  same  conclusion  about  the  obscenity  of  every 
conceivable  book.  Therefore,  the  so-called  judicial  "tests"  of 
obscenity  are  not  standards  of  judgment,  but,  on  the  contrary, 
by  every  such  "test"  the  rule  of  decision  is  itself  uncertain, 
and  in  terms  invokes  the  varying  experiences  of  the  testers 
within  the  foggy  realm  of  problematical  speculation  about 
psychic  tendencies,  without  the  help  of  which  the  "test"  itself 
is  meaningless  and  useless.  It  follows  that  to  each  person  the 
"test,"  of  criminality,  which  should  be  a  general  standard  of 
judgment,  unavoidably  becomes  a  personal  and  particular 
standard,  differing  in  all  persons  according  to  those  varying 
experiences  which  they  read  into  the  judicial  "test."  It  is 
this  which  makes  uncertain,  and,  therefore,  all  the  more  ob- 
jectionable, all  the  present  laws  against  obscenity.  Later  it 
will  be  shown  that  this  uncertainty  in  the  criteria  of  guilt 
renders  these  laws  unconstitutional. 

As  the  final  proofs  are  being  read  there  comes  from  the 
press  the  sixth  volume  of  Dr.  Havelock  Ellis'  elaborate 
"Studies  in  the  Psychology  of  Sex,"  the  earlier  volumes  of 
which  I  have  often  quoted  herein.  At  page  54  I  find  this 
gratifying  indorsement  of  the  main  contention  of  this  chapter. 
He  says:  "Anything  which  sexually  excites  a  prurient  mind 
is,  it  is  true,  'obscene'  to  that  mind,  for,  as  Mr.  Theodore 
Schroeder  remarks,  obscenity  is  'the  contribution  of  the  read- 
ing mind'." 


P.  S The   rest  of  the  Psychologic  Study  of   Modesty . 

which  should  be  a  part  of  this  chapter,  will  be  found  at 
pages  315  to  325.  This  misplacement  is  one  of  the  defects 
arising  from  the  literary  mechanics,  by  which  1  tried 
hastily  to  make  a  book  by  the  use  of  a  paste  pot  and  some 
magazine  articles,  where  I  should  have  rewritten  the 
whole.— T.  S. 


278 


CHAPTER  XV. 

UNCERTAINTY  OF  THE  "MORAL"  TEST  OF  OB- 
SCENITY.* 

Our  Courts,  in  their  blind  non-logical  gropings  for  some 
practical  criteria  of  guilt  under  these  vague  statutes  against 
"obscenity,"  have  often  amended  the  statutes  so  as  to  make 
the  criminality  of  admitted  facts  depend,  not  upon  the  literal 
application  of  the  letter  of  the  statute,  but  upon  the  jury's 
opinion,  according  to  its  personal  standards,  as  to  whether 
or  not  the  matter  is  such  as  might  tend  to  deprave  the  morals 
of  some  hypothetical  person  who  might  be  open  to  such  im- 
moral influences.  Assuming  now  for  the  sake  of  argument 
that  this  judicial  legislation  is  entirely  proper  as  a  matter  of 
legitimate  statutory  construction,  then  the  question  arises 
whether  this  makes  the  statutory  criteria  of  guilt  so  certain 
in  meaning  as  is  necessary  to  constitute  this  statute  "due 
process  of  law."  If  courts  can  be  said  to  have  answered  a 
question  which  they  have  not  even  considered,  because  the 
answer  is  a  necessary  inference  from  their  acts,  then  the 
courts  have  answered  this  question  in  the  affirmative.  Is  this 
answer  by  implication  correct? 

The  inquiry  now  to  be  pursued  is  as  to  whether  or  not 
there  exists  an  agreement  as  to  the  criteria  of  the  ethical 
right  in  general,  and  of  sex  ethics  in  particular,  such  as  en- 
ables the  "moral"  test  of  obscenity  to  satisfy  the  constitu- 
tional requirement  as  to  the  necessary  certainty  of  the  cri- 
teria of  guilt  in  a  penal  statute.  The  method  will  be  to 
study  the  various  schools  of  ethics,  and  to  exhibit  what  the 
various  leaders  of  thought  have  to  say  upon  the  subject. 

RELIGION    AND    SCIENCE    DISTINGUISHED. 

The  most  conspicuous  line  of  cleavage  between  differing 
schools  of  morals,  is  that  which  separates  religious  morality 
from  ethical  science.  The  matter  of  differentiating  the  ethics 
of  science  from  religious  morality,  is  but  a  sub-division  of  the 
larger  problem  of  the  distinctions  between  religion  and  science 

*Revised  from  the  Truth  Seeker. 

279 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

in  general.  In  The  Arena'  (Jan.  1,  1908),  I  discussed  this  latter 
question,  rather  too  briefly,  but  summarized  my  conclusions 
as  to  the  difference  between  science  and  religion  in  the  fol- 
lowing language: 

"In  religion  the  source  of  authority  for  its  beliefs  and 
activities  is  subjective  experiences,  believed  not  to  be  de- 
pendent for  their  existence  upon  material  objective  stimuli. 
To  describe  these  subjective  processes  for  the  acquisition  of 
religious  knowledge  such  phrases  are  used  as  an  act  of  faith, 
an  assurance  of  the  heart,  the  inward  miracle  of  grace,  and 
the  inward  monitions  of  the  spirit. 

"Science,  on  the  contrary,  deals  only  in  objectives,  and  in 
our  relation  with  them  finds  its  only  source  of  knowledge. 
Even  when  psychic  phenomena  are  being  studied  the  scientist 
must  consider  them  objectively. 

"From  this  difference  in  the  sources  of  religious  and 
scientific  knowledge,  comes  an  unavoidable  difference  of  meth- 
od to  be  pursued  for  the  acquisition  of  their  respective  truths. 
The  religionist  resorts  to  faith,  to  prayer,  to  spiritual  exer- 
cises, to  silent  communion  with  unseeable  powers,  superhuman 
intelligences,  or  extra-physical  personages,  as  a  means  of  se- 
curing those  subjective  experiences  by  which  he  knows 
because  he  feels,  and  is  firmly  convinced  because  strongly 
agitated.  The  scientist  on  the  contrary  can  sum  up  his 
method  in  an  application  of  the  processes  of  synthesis  and 
analysis  to  our  human  experience  with  our  material  environ- 
ments. 

"From  these  differences  of  source  and  method  comes  also 
a  difference  of  aim.  The  scientist  is  concerned  with  the  laws 
of  nature,  under  which  are  included  not  merely  things  and 
their  forces,  but  men  and  their  ways,  to  the  end  that  human 
happiness  here  and  now  may  be  increased  by  a  more  perfect 
adjustment  to  the  conditions  of  our  present  material  well- 
being.  On  the  other  hand,  religion  is  primarily  concerned 
with  the  laws  of  our  'spiritual/  (that  is,  our  alleged  super- 
physical)  nature,  to  the  end  that  man's  happiness,  primarily 
in  some  other  existence,  may  be  increased  through  the  in- 
dividual's adjustment  to  the  conditions  of  'spiritual'  growth 
and  'spiritual'  well-being. 

January,   1908.       'The  Religious   and   Secular   Distinguished. 

280 


UNCERTAINTY  OF  THE      MORAL      TEST  OF  OBSCENITY. 

"The  scientist,  or  secularist,  never  subordinates  the  human 
happiness  of  this  existence  to  that  of  any  other.  The  re- 
ligionist on  the  other  hand,  whenever  a  conflict  arises  be- 
tween the  joys  of  this  life  and  those  of  some  other  kind  of 
existence,  always  must  sacrifice  the  present  for  the  advance- 
ment of  that  other,  super-physical,  existence." 

What  is  thus  true  of  the  difference  between  religion  and 
science  in  general,  is  equally  true  of  the  difference  in  the 
particular,  between  religious  and  scientific  ethics.  That  the 
general  sources  of  religious  authority,  method  for  discovering 
religious  truth,  and  the  ends  to  be  achieved  by  it,  are  all 
true  of  religious  ethics  in  particular,  is  quite  generally  under- 
stood. The  antipathy  between  religious  and  secular  morality 
is  not  so  generally  known.  Indeed,  very  few,  even  among 
those  who  have  left  the  churches,  seem  to  know  anything  defi- 
nite about  secular  morality,  and  blindly  continue  to  follow  the 
moral  dogmatism  and  sentimentalism  of  their  abandoned  re- 
ligion. Religious  morality  either  directly,  or  indirectly  through 
the  meditation  of  holy  writ  or  a  holy  priest  or  priesthood,  rests 
upon  the  authority  of  some  a  priori  sanctity,  whose  inerrancy 
is  certified  to  by  some  subjective  experience,  sometimes  per- 
sonal, at  others  adopted  through  imitation.  The  morality  of 
science  is  always  based  upon  experienced  consequences  of  con- 
duct, and  between  these  differing  moral  standards  there  is, 
and  always  will  be,  an  irrepressible  conflict,  arising  from  their 
different  source  of  authority,  of  method,  and  of  end  to  be 
achieved.  This  I  will  now  try  to  make  more  plain. 

THEOLOGICAL    MORALS. 

Prebendary  Wace  says:  "Morality  cannot  for  practical 
purposes  be  left  to  rest  on  scientific  experiences.  *  *  *  *  *  It 
is  essential  in  practice,  to  the  welfare  of  individuals  and  of 
society  alike,  that  the  chief  false  routes  of  moral  life  should 
be  barred  by  plain  and  authoritative  prohibitions."2  He  also 
informs  us  that :  "The  eternal  relations  of  the  heart  to  a  per- 
fect being,  towards  whom  every  emotion  of  love  and  gratitude 
can  be  indulged  to  the  highest  degree,"  is  a  higher  purpose  and 
motive  for  morals  than  can  be  supplied  by  natural  law. 

Prof.  Sedgwick  considers  the  moral  ought  as  an  "ulti- 
mate and  unanalyzable  fact."* 

*Ethics    and    Religion   by    Prebendary    Wace.      In    Journal   of   the    Victoria 
Institute,  1901,  vol.  33. 
•Mt'nd,  Oct.,  1889. 

28l 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

Mortensen  says :  "Truly  if  the  Light  of  religion  be  ex- 
tinguished no  reason  is  perceptible  for  leading  a  moral  life  in 
all  these  finite  and  temporal  relations."4 

"Blind  obedience  to  extraneous  law  does  not  approve  itself 
to  us  as  really  moral.  *  *  *  *  The  question  concerning  the 
ground  of  our  moral  obligations  finds  an  adequate  solution  only 
in  God,"5  says  the  Rev.  Otto  Pfleiderer. 

In  religious  ethics  the  appeal  is  to  "the  reality  which 
transcends  that  which  now  is  and  that  which  now  is  known,  "6 
is  the  opinion  of  the  Rev.  George  Wm.  Knox. 

Notwithstanding  the  persistence  of  the  clerical  false- 
hoods to  the  contrary,  Thomas  Paine  was  a  theist,  and  al- 
though his  religious  emotions  no  longer  prompted  him  to 
adopt  the  Bible,  or  the  priest,  as  embodying  the  divine  will,  he 
nevertheless  did  not  place  his  morality  upon  a  scientific  basis. 
His  words  are:  "The  practice  of  moral  truth,  or  in  other 
words  a  practical  imitation  of  the  moral  goodness  of  God, 
is  no  other  than  our  acting  towards  each  other  as  he  acts 
benignly  toward  us." 

Such  theistic  morality,  though  strictly  religious  in  an 
unsectarian  sense,  yet  is  the  associate  of  a  conspicuous  devia- 
tion from  the  habit  of  applying  the  religious  method  to  all  the 
factors  of  life.  Thus  is  marked  the  beginning  of  a  transition 
from  the  all-religious  to  the  complete  secularization  of  our 
thinking. 

THE  TRANSITION    TOWARDS    SECULAR    MORALITY. 

With  that  religionist  whose  mind  is  wholly  "uncorrupted" 
by  the  scientific  method,  his  religion,  its  methods  and  aims,  will 
determine  his  ethical  ideals.  As  a  man  gets  away  from  the 
religious  habit  of  mind,  he  gradually  acquires  moral  and  other 
ideals  whose  authority  will  dominate  and  determine  his  re- 
ligious convictions.  This  is  the  transitional  stage  of  some  ad- 
vanced theologians  and  the  ethical  culturists.  When  these 
dominating  ethical  ideals  have  become  wholly  scientific,  then 
the  secularization  of  morals  is  complete.  The  following  il- 
lustrates the  second  stage  of  secularizing  influence  in  an  ad- 
vanced theologian.  "Religion  must  ever  anew  measure  its 
inherited  ideas  and  customs  against  the  standard  of  the  ethical 

4Christian  Ethics,  p.  16. 

8Rev.  Otto  Pfleiderer  in  Am.  Journal  of  Theology.  April,  1899,  vol.  3,  p.  239. 
•Religion    and    Ethics    by    Rev.    Geo.    Wm.    Knox    of    Union    Theol.    Sem.    in 
International  Journal  of  Ethics,  v.   12,  p.  315. 

282 


UNCERTAINTY  OF  THE      MORAL      TEST  OF  OBSCENITY. 

ideals,  [otherwise  acquired?]  and  in  so  far  as  they  do  not 
harmonize  with  that,  it  must  strive  for  their  purification  and 
progressive  development.  *  *  *  *  *  It  may  be  justly  demanded 
that  its  teachings  shall  not  conflict  with  what  has  been  es- 
tablished as  theoretical  or  practical  truth,  and  especially  that 
it  shall  not  lag  behind  our  ethical  ideals."7  But  how  are 
we  to  judge  of  differing  standards,  which  is  the  one  that  is 
lagging  behind  and  which  running  ahead  ?  This  author  seems 
to  demand  that  even  the  religious  authority  in  matters  of 
ethics  may  properly  be  subordinated  to  the  standards  of 
science. 

In  this  progression  toward  the  secularization  o>f  our 
morals,  the  ethical  culture  movement  represents  the  "last 
ditch"  of  religion,  in  resisting  the  secular  advance.  Here  the 
religious  method,  and  its  subjective  source  of  authority,  are 
still  in  full  operation  as  to  morals,  but  the  theology  and  the 
use  of  the  religious  method  in  every  other  branch  of  human 
thinking  may  have  been  abolished.  In  the  following  quotation 
we  see  a  non-theological  religious  morality  in  full  force,  with 
the  ecstatic  joy  and  hysterical  enthusiasm  of  the  revival  con- 
vert but  slightly  impaired.  One  can  readily  imagine  the  ex- 
horter's  impassioned  tones  accompanying  this  statement  from 
the  Ethical  Culturist. 

"There  is,"  he  says,  "no  reason  why  men,  become  con- 
scious of  their  responsibilities  and  of  the  great  issues  at  stake, 
[in  ethical  conduct,]  should  not  be  touched  with  reverence 
and  awe  as  they  think  of  these  things,  should  not  become 
hushed  and  subdued.  Morality  would  then  become  a  religion 
to  men,  in  the  fundamental  and  indeed  universally  recognized 
sense  of  the  term.  Morality  as  I  conceive  it,  morality  as  I 
have  tried — and  yet  too  well  know  I  am  unable,  to  picture  it — 
Morality  as  conscious  willing  glad  subordination  to  the  uni- 
versal law  of  life,  morality  as  lifting  one  to  comradeship  with 
suns  and  stars,  because  it  is  faithful  as  they,  Morality  loving 
the  law  of  life  more  than  life,  Morality  ready  to  die  rather  than 
to  be  untrue — that  Morality  may  be  the  very  ideal  which  one 
may  seek  all  one's  life  to  follow,  that  may  be  the  supreme  pas- 
sion to  a  man,  down  on  his  knees  he  may  bow  before  it,  as 
he  may  before  Jesus,  or  before  Buddha,  or  any  other  son  of 
man,  who  has  exemplified  the  ideal,  or  made  it  any  brighter 

7Rev.  Otto  Pfleiderer  in  Am.  Journal  of  Theology,  April,  1899,  vol.  225-249. 

283 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

before  his  eyes.     Aye,  then  it  is  plain  the  sense  in  which  Re- 
ligion and  Morality  may  become  one."8 

It  is  apparent  that  the  ethical  culturist  has  that  same 
unreasoned,  passionate  devotion  to  his  moral  law  which  the 
Brahmin  manifests  for  the  law  of  Manu,  the  Persian  for  the 
laws  of  Zoroaster,  the  Mohammedan  for  his  Koran,  the  Prot- 
estant Christian  for  his  Bible,  the  Catholic  for  his  "permanent 
oracle  of  the  divine  will"  at  Rome,  and  the  Mormon  for  the 
utterances  of  his  "Prophet,  Seer,  and  Revelator,"  who  is  the 
Utah  Pope;  and  each  endorsing  something  which  some  other 
denounced  as  immoral.  It  is  also  apparent  that  the  same  sub- 
jective source  of  authority  exists  in  all  cases  though  it  at- 
taches itself  to  varying  standards.  Take  these  words  of  Mr. 
Mangasarian,  when  he  was  still  connected  with  the  Ethical 
Culture  movement,  as  conclusive  proof.  "Ethical  Culture 
is  the  religion  of  the  spirit.  *****  Ethics  is  the  heart  of 
religion.  *  *  *  *  *  ft  is  impossible  to  learn  from  the  physical 
world  the  lesson  of  morality.  *****  Whenever  we  protest 
against  wrong  it  is  from  within  that  we  draw  our  inspiration. 
*****  Ethical  Culture  is  a  spiritual  religion."9 

RELIGION  WITHOUT  MORALS. 

Not  by  this  method,  alone,  but  also  by  historical  investi- 
gation, can  it  be  shown  that  we  can  have,  not  only  religious 
morals  without  theology,  but  also  that  we  may  have  religion 
without  a  moral  code.  Here  again  eminent  authorities  also 
sustain  our  contention.  We  may  begin  by  calling  the  Rev. 
Dr.  Batchelor  to  the  witness  stand.  He  says:  "Religion 
does  not  begin  in  ethics.  It  did  not  grow  out  of  ethics.  It 
was  before  ethics  in  origin  and  has  during  a  great  part  of 
human  history  wrought  in  life  independently  of,  and  not  in- 
frequently in  distinct  opposition  to,  the  ethical  sentiment.  Let 
all  sense  of  ethical  obligation  be  destroyed,  or  reduce  it  again 
to  the  level  of  the  pre-historic  standard,  and  still  religion 
would  none  the  less  be  a  power  in  human  life  not  to  be  disre- 
garded."10 

Next  we  quote  Professor  Everett,  of  Brown  University. 
He  says  r11  "That  religion  may  be  non-ethical,  finds  numerous 
.illustrations  in  the  history  of  the  world's  religions.  Indeed, 

•Rev.   W.   Salter  in   Morality  and  Religions,   p.   33. 

•The   Religion  of   Ethical   Culture,   by   Mangasarian,   Philadelphia. 

10Religion  its  own  Evidence,  p.  19. 

^International  Journal  of  Ethics,  v,   10,  p.   479. 

284 


UNCERTAINTY  OF  THE      MORAL      TEST  OF  OBSCENITY. 

at  a  certain  stage,  many  primitive  religions  appear  to  have 
been  non-ethical.  That  of  Rome  continued  for  centuries,  re- 
maining to  the  last  almost  exclusively  formal  and  ritualistic. 
The  statement  that  ethics  may  be  non-religious,  finds  abundant 
support  in  modern  life,  as  in  the  case  of  the  positivists." 

To  this  we  may  add  the  testimony  of  the  Rev.  Geo.  Wm. 
Knox,  of  Union  Theological  Seminary.12  He  says :  "Re- 
ligion is  to  be  distinguished  from  ethics.  Even  when  some- 
what developed,  it  may  have  no  ethical  code.  It  is  said  that 
Shinto  has  as  its  teaching  only  this :  Fear  God  and  obey  the 
Emperor!  But  in  its  earlier  books  there  is  not  even  this 
teaching,  nothing  which  implies  either  as  an  ethical  maxim. 
The  later  writers  explain  this  unusual  feature  by  saying  that 
the  Japanese,  being  holy  by  nature,  need  no  moral  code ;  which 
was  invented  by  immoral  folk  like  the  Hindoos  and  the 
Chinese." 

Aristotle  and  Bacon  separated  the  sphere  of  religion  and 
ethics  by  assigning  to  the  former  those  matters  relating  to  an 
after-life,  and  to  the  sphere  of  the  latter  those  actions  which 
relate  only  to  the  present  life.  Of  course  many  others  would 
insist  that  according  to  their  conception  of  the  after  life,  all 
conduct  here  is  related  to  it,  affects  it.  Probably  most  of  our 
present  day  orthodox  Christians  hold  with  Thomas  Aquinas 
that  God  is  the  direct  source  of  all  the  theological  virtues,  and 
the  indirect  source  of  all  earthly  virtues.  While  thus  agree- 
ing as  to  the  source  of  authority  with  all  believers  in  theistical 
religions,  there  is  the  widest  range  of  belief  as  to  what  the 
Deity  really  considers  virtue.  See  the  varying  attitudes  toward 
sex  problems  entertained  by  Catholics,  Shakers,  Methodists, 
Bible  Communists,  Mohammedans  and  Mormons,  all  being 
Christian  sectarists. 

In  practically  all  Christian  ethics  the  foundation  tenet  is 
that  God  requires  obedience  to  his  law,  not  because  it  is  good, 
but  because  it  is  his  law.  As  to  its  goodness,  finite  humans 
have  neither  capacity  nor  right  to  sit  in  judgment,  except  to 
approve  and  obey.  His  moral  law  is  good,  not  in  itself,  but 
only  as  the  expression  of  the  Divine  will.  God  might  have 
willed  to  the  contrary  and  then  his  will  would  still  have  been 
good. 

ETHICS  OF  SCIENCE. 

When  we  contrast  this  with  any  scientific  conception  of 

"International  Journal  of  Ethics,  v.    12,   p.   305. 

285 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

ethics  the  irrepressible  conflict  at  once  manifests  itself.  Here 
responsibility  rests  upon  the  individual,  not  merely  as  to  choos- 
ing which  God,  or  whose  interpretation  or  conception  of 
God's  will,  it  is  to  which  he  will  yield  blind  and  unquestioning 
obedience,  but  also  for  the  choice  of  conduct  according  to  its 
social  utility.  Conduct  now  is  moral  or  not  according  to  its 
consequences,  determined  by  its  being  a  violation,  or  not,  of 
the  natural  law  of  our  social  organism.  But  the  good  and 
ill  of  consequences  are  relative,  so  morality  becomes  a  rela- 
tive matter  instead  of  an  absolute  thing.  Responsibility 
now  cannot  be  shifted  on  to  God,  for  having  imposed  an  in- 
scrutable injurious  "duty,"  and  each  person  must  decide  for 
himself  what  is  to  be  his  own  moral  code,  and  himself  must 
take  the  consequences  of  judging  wrong  and  violating  nature's 
moral  law.  For  the  breaching  of  nature's  inexorable  laws 
there  is  no  forgiveness,  nor  vicarious  atonement.  In  natural 
law  all  must  take  the  natural  consequences  of  their  conduct. 
No  priest  can  save  us.  We  must  readjust,  get  in  harmony 
with  the  law — or  perish.  No  wonder  then  that  Cotton  Mather 
denounced  ethics  as  "a  vile  form  of  paganism."13 

THE    NON-RELIGIOUS,    NON-THEOLOGIC   MORALITY   OF   SCIENCE. 

To  make  the  irresistible  conflict  between  religious  and 
scientific  morals  still  more  evident  it  becomes  desirable  to 
quote  some  of  the  standard  writers  upon  ethics,  to  show 
what  is  their  source  of  ethical  authority  and  what  are  their 
varying  criteria  of  the  moral  life. 

As  to  the  source  of  ethical  authority,  "Clifford  says  that 
the  'Maxims  of  ethics  are  hypothetical  maxims,  derived  from 
experience  and  based  on  the  assumption  of  the  uniformity  of 
nature/  "14 

Another  offers  this :  "Morality  springs  from  those  human 
relationships  in  which  the  individual  finds  himself  compelled 
to  live  and  act.  It  has  its  roots  in  the  needs  physical  and 
mental  which  other  human  beings  can  satisfy  and  in  the 
sympathies  which  answer  to  those  needs."  Science  "seeks 
to  find  the  sanction  of  morality  in  the  natural  and  inevitable 
results  of  the  conduct  itself  and  to  establish  morality  on  a 
rational  basis  by  exhibiting  the  inescapable  consequences  of 
right  and  wrong  action,  of  good  and  evil  character,  as  in 

l3See     Hall's   Adolesence,   v.   2,   pp.   287-288. 

"Relipion  and  Ethics,  by  Rev.  Geo.  Wm.  Knox,  of  Union  Theol.  Sem.  in 
.International  Journal  of  Ethics,  v.  12.  p.  305 

286 


UNCERTAINTY  OF  THE  "MORAL"  TEST  OF  OBSCENITY. 

themselves  sufficient  grounds  for  the  choice  of  the  one  and 
the  avoidance  of  the  other.  As  a  science  it  does  not  even  in- 
quire if  there  is  a  supreme  being."15 

While  all  scientific  students  of  ethics  agree  that  nature  is 
the  ultimate  source  of  authority  in  ethics,  yet  when  it  comes  to 
formulating  a  general  statement  of  what  is  required  of  us  by 
the  natural  law  of  our  interhuman  relations  there  is,  at  least 
seemingly,  a  wide  range  of  difference  in  the  statement.  This 
is  quite  inevitable  in  the  present  undeveloped  state  of  our  at- 
tainments in  the  social  sciences.  We  are  as  yet  too  near  the 
beginnings  of  our  investigation  into  these  subjects  to  have 
arrived  at  any  comprehensive  and  ultimate  rational  generaliza- 
tions. 

Let  me  now  portray  the  criteria  of  moral  guilt  according 
to  various  students  of  ethical  science.  I  will  begin  with  John 
Stuart  Mill  whose  ethical  views  are  still  very  popular  with 
the  masses,  but  have  lost  much  of  their  authority  with  the 
more  modern  scientists. 

He  says :  "According  to  the  greatest-happiness  principle 
as  above  explained,  the  ultimate  end,  with  reference  to  and 
for  the  sake  of  which  all  other  things  are  desirable  (whether 
we  are  considering  our  own  good  or  that  of  other  people)  is 
an  existence  exempt  as  far  as  possible  from  pain,  and  as  rich 
as  possible  in  enjoyment,  both  in  point  of  quantity  and  quality; 
the  test  of  quality  and  the  rule  for  measuring  it  against 
quantity,  being  the  preference  felt  by  those  who  in  their  op- 
portunities of  experience,  to  which  must  be  added  their  habits 
of  self-consciousness  and  self-observation,  are  best  furnished 
with  the  means  of  comparison.  This  being  according  to  the 
utilitarian  opinion  the  end  of  human  action,  is  necessarily  also 
the  standard  of  morality/'16 

Another  statement  of  such  views  is  the  following :  "James 
Mackaye,  in  'The  Economy  of  Happiness,'  states  that  a  right 
act  is  an  act  of  maximum  utility,  that  act,  among  those  at  any 
moment  possible,  whose  presumption  of  happiness  is  a  maxi- 
mum, and  that  'a  wrong  act  is  any  alternative  of  a  right  act.' 
The  test  therefore  to  be  applied  to  an  act  is,  does  it  produce, 
happiness?  If  so  it  is  a  moral  act."17 

As  a  criterion  of  conduct  these  statements  are  still  vague. 

15Prof.  Everett  of  Brown  University  in  vol.  10,  p.  479.  International  Jour- 
nal of  Ethics. 

iei  .    28   of  Mill's  Utilitarianism. 

"Arthur  Smith  in  The  Arena,  August,  1907,  p.   ISO. 

287 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

Whose  conception  of  the  good  and  the  useful  has  nature  pre- 
scribed as  a  measure  of  moral  values?  Is  it  right  for  a  majority,, 
deliberately  and  for  its  own  pleasure,  or  good,  or  both,  to 
do  injustice  and  inflict  pain  on  a  helpless  minority?  Most 
people  seem  to  think  so,  if  we  may  accept  the  great  popularity 
of  the  dogma:  "The  greatest  good  to  the  greatest  number," 
without  limiting  this  test  to  such  conduct  as  necessarily  in- 
volves social  consequences  as  its  direct  result.  The  few,  with 
a  more  refined  sense  of  justice,  as  it  seems  to  me,  decline  to 
give  their  assent  to  a  doctrine  which  permits  the  greatest 
number  to  do  any  wrong,  no  matter  how  outrageous,  if  only 
in  their  own  opinion  the  greatest  number  (to  wit,  them- 
selves) deems  it  even  momentarily  to  be  advantageous  to  them- 
selves, in  its  overweighing  goodness. 

Out  of  such  speculations  come  conflicting  ethical  theories, 
according  to  whether  the  emphasis  is  put  upon  the  individual 
good,  the  majority's  good  or  the  racial  good.  Others  with  a 
broader  vision  and  a  more  refined  sense  of  justice,  as  it  seems 
to  me,  repudiate  such  notions  of  morality.  "The  highest 
morality  demands,  therefore,  careful  judgment.  The  factors 
to  be  considered  are  the  complicated  relations  of  men  in  the 
society  of  which  the  judge  and  the  actor  himself  is  a  mem- 
ber ;  morality  may  thus  be  identified  with  justice  in  the  highest 
sense  of  the  word."18 

"Every  action  is  right  which  in  itself,  or  in  the  maxim  on 
which  it  proceeds  is  such  that  it  can  co-exist  along  with  the 
freedom  of  the  will  of  each  and  all  in  action,  according  to  a 
universal  law.  If  then  my  action  or  my  condition  generally 
can  co-exist  with  the  freedom  of  every  other,  according  to  a 
universal  law,  any  one  does  me  a  wrong  who  hinders  me  in 
the  performance  of  this  action,  or  in  the  maintainance  of  this 
condition.  For  such  a  hindrance  or  obstruction  cannot  co- 
exist with  freedom  according  to  universal  law." 

The  last  quotation,  from  Emanuel  Kant's  Philosophy  of 
Law,  is  but  the  rule  of  natural  justice  applied  to  the  problem 
of  personal  liberty,  and  justifies  all  conduct  which,  according 
to  Herbert  Spencer's  formula,  is  not  an  invasion  of  another's 
greatest  liberty,  is  consistent  with  an  equality  of  liberty. 

Even  if  the  seeming  differences  thus  far  exhibited  can  be 
reconciled,  still  others  confront  us.  These,  as  it  seems  to  me,. 

'•Williams'  Evolutional  Ethics.  445. 

238 


UNCERTAINTY  OF  THE      MORAL      TEST  OF  OBSCENITY. 

result  mostly  from  a  partial  view  of  the  individual's  relations 
to  his  fellowman  and  the  rest  of  the  universe,  and  from  this 
defective  view  comes  an  undue  emphasis  upon  some  one  aspect 
or  some  one  phase  of  the  ethical  problem.  Thus  the  Egoist 
finds  the  chief  factor  of  moral  obligation  to  be  in  the  personal 
good  of  each  actor  for  himself.  From  the  evolutional  view- 
point we  have  racial  advantage  emphasized  most.  Pres.  G. 
Stanley  Hall  states  it  thus:  "The  basis  of  the  new  biological 
ethics  of  today  and  of  the  future  is  that  everything  is  right 
that  makes  for  the  welfare  of  the  yet  unborn,  and  all  is  wrong 
that  injures  them,  and  to  do  so  is  the  unpardonable  sin — the 
only  one  that  nature  knows." 

It  may  be  a  matter  of  interesting  speculation  to  inquire 
if  these  two  seemingly  divergent  views  are  really  in  conflict. 
The  question  then  would  be  whether  an  individual  can  injure 
himself  without  injury  to  his  progeny  and  whether  future 
generations  can  possibly  be  injured  except  by  first  injuring 
some  one  of  the  present  generation?  To  ask  these  questions 
already  suggests  the  possibility  that  all  these  seemingly  vary- 
ing standards  can  be  harmonized  by  reference  to  some  broad 
generalization  of  nature's  moral  law.  Some  such  general 
statements  have  already  been  attempted  and  will  now  be  quoted 
to  emphasize  further  the  inevitable  and  irreconcilable  conflict 
between  the  morality  of  religion  and  the  results  of  ethical 
science.  Charles  Lee  says :  "Vice  represents  an  incomplete 
response  to  the  guidance  of  the  law  of  life.  *  *  *  *  Like  every 
other  arbitrary  standard,  that  of  morality  must  be  regarded 
as  the  interpretation  of  the  law  of  life  for  the  guidance  of  the 
individual  man.  *  *  *  *  Perfect  freedom  is  only  to  be  found 
in  absolute  obedience  to  nature's  law.  All  human  laws  are 
but  interpretations  thereof,  and  according  to  the  degree  of  their 
imperfections  the  individual  response  to  the  guidance  of  na- 
ture is  fettered,  and  social  sickness  becomes  more  or  less 
acute."19 

But  "the  law  of  life"  is  still  a  vague  phrase,  and  the  law 
itself  but  partially  understood.  However,  it  points  clearly  the 
direction  of  our  search  for  the  ethical  sanction.  De  Fleury 
tries  to  be  more  specific  when  he  says : 

"The  new  morality  is  hygienic,  science  raising  itself  to  the 
dignity  of  a  practical  philosophy;  it  is  therapeutics  dealing 

"Cosmic   Ethics,   pp.   143-152-203. 

289 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

with  the  temporary  weakness,  or  more  serious  paralysis  of  our 
will,  the  great  regulator  of  the  human  machine;  disorder  in 
love,  disorder  in  work,  insensate  anger  or  vain  sadness;  these 
are  the  sins  of  enfeebled  will.  If  the  hygiene  which  we  desire 
succeeds  in  teaching  men  to  live  worthily,  and  to  work  well 
then  it  in  truth  is  a  sound  morality,  for  except  loving  and  work- 
ing, what  is  there  of  serious  import  here  below?  (p.  356)  *  *  *  * 
I  believe  firmly  that  our  vices  develop  themselves  only  in 
unhealthy  soil;  that  the  way  to  cure  the  mind  is  to  treat  the 
brain;  that  henceforth  the  moralist  is  inseparable  from  the 
doctor,  (p.  361)  *****  If  we  look  at  love  from  the  point 
of  physiology  or  of  Naturalist  philosophy,  platonic  love  will 
surely  appear  to  us  the  most  harmful  as  it  is  the  most  im- 
moral."20 

But  this  again  is  perhaps  a  partial  view.  Many  without 
being  unhealthy,  develop  vices  through  mere  ignorance,  imita- 
tion or  misinformation,  and  when  they  come,  diseases,  personal 
and  social,  are  often  a  consequence  and  not  a  cause.  This  is 
more  especially  true  in  the  realm  of  sexual  ethics  than  any- 
where else,  because  here  moral  sentimentalism  and  the  the- 
ology of  sex  are  constantly  and  successfully  forcing  their 
misinformation  and  anti-natural  ideals  upon  a  long  suffering 
public,  with  the  result  that  our  insane  asylums  and  sanitariums 
for  the  treatment  of  nervous  diseases  are  full  to  overflowing. 
A  wiser  view  will  some  day  abolish  the  dogmatic  sex-morality 
of  religion,  and  substitute  a  truly  scientific  ethics  in  its  stead, 
which  will  not  only  be  prophylactic  and  therapeutic,  from  the 
individual  viewpoint,  but  will  also  discover  to  perfection  and 
also  live  up  to  nature's  rule  of  justice  which  is  always  moral, 
as  among  all  humans.  Thus  only  will  we  attain  our  highest 
degree  of  perfection  and  our  most  elevated  conception  and 
realization  of  human  joys. 

To  me  it  seems  as  though  Herbert  Spencer  has  given  us 
the  most  rational  view  of  the  criteria  of  right  conduct  and  in- 
dicates most  clearly  what  is  the  object  of  ethical  science.  As 
to  the  first  he  says :  "Conduciveness  to  happiness  is  the  ulti- 
mate test  of  perfection  in  man's  nature."  Further  on  he  says : 
"Before  we  can  fully  understand  the  ethical  aspects  of  chastity, 
we  must  study  its  biological  and  sociological  sanctions.  Con- 
duciveness to  welfare,  individual  or  social  or  both,  being  the 

wDe   Fleury  in   Medicine  and   Mind,   p.   300. 

290 


UNCERTAINTY  OF  THE 

ultimate  criterion  of  evolutionary  ethics,  the  demand  for  chas- 
tity has  to  be  sought  in  its  effects  under  given  conditions.  *  *  * 
We  saw,  too,  that  in  some  cases,  especially  in  Thibet,  polyandry 
appears  more  conducive  to  social  welfare  than  any  other  re- 
lation of  the  sexes.  It  receives  approval  from  travelers,  and 
even  a  Moravian  missionary  defends  it ;  the  missionary  holding 
that  'superabundant  population,  in  an  unfertile  country,  must 
be  a  great  calamity,  and  produce  "eternal  warfare  or  eternal 
want."  '  'm 

Likewise  a  convention  of  Christian  missionaries,  for  the 
moment  subordinating  the  absolute  moral  creed  of  their  reli- 
gion to  practical  ends,  once  resolved  that  Mohammedan  poly- 
gamy was  not  a  barrier  to  acceptance  of  the  convert  to  the 
orthodox  fold. 

But,  I  must  return  to  Spencer.  It  seems  to  me  that  when 
we  have  achieved  a  truly  scientific  ethics,  we  will  probably 
have  unified  all  the  scientists'  seemingly  conflicting  criteria 
of  right  conduct.  The  work  before  us  is  outlined  by  him  in 
these  words :  "The  view  for  which  I  contend  is,  that  Morality 
properly  so-called — the  science  of  right  conduct — has  for  its 
object  to  determine  how  and  why  certain  modes  of  conduct  are 
detrimental,  and  certain  other  modes  beneficial.  These  good 
and  bad  results  cannot  be  accidental,  but  must  be  necessary- 
consequences  of  the  constitution  of  things ;  and  I  conceive  it 
to  be  the  business  of  Moral  Science  to  deduce,  from  the  laws 
of  life  and  the  conditions  of  existence,  what  kind  of  actions 
necessarily  tend  to  produce  happiness,  and  what  kinds  to 
produce  unhappiness.  Having  done  this,  its  deductions  are 
to  be  recognized  as  laws  of  conduct;  and  are  to  be  conformed 
to  irrespective  of  a  direct  estimation  of  happiness  or  misery."28 

As  the  stars  do  not  create  the  laws  which  they  obey, 
so  men  cannot  create  the  moral  laws,  which  compel  obedience, 
or  the  acceptance  of  disaster.  The  law  of  individual  life 
is  rather  a  physical  than  an  ethical  law,  because  an  enlight- 
ened self-interest  will  preclude  self-infliction  from  becoming 
a  social  menace.  The  ethical  problem  begins  only  when  others 
are  directly  affected  without  their  consent,  and  the  ethical 
law,  which  is  only  the  law  of  life  in  the  social  organism,  nec- 
essarily inheres  in  the  nature  of  things,  and  it  is  the  purpose 

MSpencer's    Principles   of   Ethics,   v.    1,   pp.    448-449.  Italics  are  mine.— T.  S. 
^Principles  of  Ethics,  vol.   1,  p.  57. 


29I 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

of  ethical  science  to  discover,  amid  infinite  complexities,  what 
is  the  natural  law  of  life  in  interdependent  human  existence. 
Just  as  fast  as  we  acquire  a  clear  comprehension  of  what  that 
law  is,  either  in  part  or  in  whole,  we  are  by  imperative  self- 
interest  irresistably  impelled  to  live  in  accordance  with  it,  and 
avoid  the  penalties  of  its  violation.  Like  gravity,  nature's 
moral  law  is  unavoidable,  and  for  its  violation  there  is  no  for- 
giveness nor  vicarious  atonement,  and  knowledge  of  the  law 
of  its  operation  only  facilitates  such  an  adjustment  as  enables 
us  to  live  in  harmony  with  its  condition  of  well-being — that 
is  to  avoid  its  pain  and  to  insure  its  blessings. 

It  is  believed  that  I  have  now  demonstrated  that  "mor- 
ality" is  not  a  fixed  and  certain  thing,  about  which  all  are 
agreed;  but  on  the  contrary  that  the  criteria  of  the  ethical 
right,  even  in  their  broadest  outline,  are  tremendously  in  con- 
flict. Of  course  this  conflict  acquires  indefinitely  greater 
variety  when  these  varying  standards  are  applied  to  concrete 
problems,  in  which  event  even  the  same  verbal  standards  of 
judgment  take  on  various  hues,  according  to  each  individual's 
own  peculiar  experiences.  It  is  also  believed  that  I  have  dem- 
onstrated that  there  is  an  irreconcilable  conflict  between  the 
morality  of  all  religions  and  ethical  science,  which  conflict 
arises  out  of  an  inevitable  difference  in  their  respective  sources 
of  authority,  their  different  methods  for  the  ascertainment  of 
moral  truths,  and  their  difference  in  the  end  to  be  achieved 
by  living  the  ethical  life. 

From  this  conflict  between  the  numerous  varieties  of 
ethical  standards,  and  the  conflict  between  these  and  the  re- 
ligious conceptions  of  the  right  life,  emerge  some  practical 
results  which  our  legislators  and  judges  should,  but  do  not, 
bear  in  mind.  Which  of  the  foregoing  varying  standards  of 
morals  does  the  statute,  or  the  judicial  legislation,  direct  jurors 
to  apply  in  determining  whether  or  not  a  particular  book  is 
"obscene?"  Where  is  the  legislative  authority  for  the  selec- 
tion if  one  is  made? 

But  careless  thinkers  may  be  tempted  to  say  that  it  makes 
little  difference  by  what  standard  of  ethics  the  judgment  is 
determined,  since  we  all  reach  pretty  much  the  same  con- 
clusion as  to  what  is  the  moral  right  in  matters  of  sex.  There 
are  two  answers  to  this  specious  argument.  First:  From  the 
viewpoint  of  the  judge  it  makes  all  the  difference  between  a 

292 


UNCERTAINTY  OF  THE      MORAL      TEST  OF  OBSCENITY. 

constitutional  and  unconstitutional  statute,  whether  a  man 
of  ordinary  intelligence  is,  or  is  not,  able  from  a  mere  reading 
of  the  law  to  know  in  advance  of  a  verdict  by  what  criteria  of 
guilt  the  verdict  will  be  determined.  The  second  answer  is, 
that  it  is  not  a  fact  that  we  all  reach  the  same  conclusion  as 
to  what  is  the  ethical  right  in  relation  to  sex  problems.  The 
variety  in  statutes  by  which  we  regulate  marriage,  divorce  and 
other  phases  of  sexual  activities,  sufficiently  evidences  this. 

This  difference  may  be  further  illustrated  by  quotations 
from  modern  ethicians  who  have  entertained  opinions  or  made 
arguments  bearing  upon  sex-ethics  which  are  of  a  character 
such  as  have  not  yet  received  general  approval. 

REV.  JOHN  NORRIS. 

"For  if  pleasure  as  such  were  against  the  good  of  the  com- 
munity, then  every  particular  pleasure  would  be  so,  because 
every  particular  pleasure  partakes  of  the  common  nature  of 
pleasure,  which  would  then  be  enough  to  render  it  evil.  *  *  * 
Now  concerning  particular  pleasure  I  propose  these  two  gen- 
eral canons,  which  I  think  will  hold  in  all  instances  whatsoever : 
First  that  that  pleasure  which  has  no  trouble  or  pain  annexed 
may,  nay  indeed  cannot  but  be  embraced ;  as  on  the  contrary, 
the  pain  which  has  no  pleasure  annexed  is  to  be  avoided.  If 
unusual  pleasure  were  evil  in  itself,  or  as  such,  it  would  be 
so  in  all  its  instances.  This  is  an  undeniable  consequence. 
But  now  that  it  is  not  so  in  all  its  instances,  is  plain  from 
the  divine  institution  of  marriage  and  therefore  it  is  not 
evil  in  itself.  For  it  must  not  be  thought  (as  some  seem  to 
fancy)  that  marriage  makes  that  good  which  was  in  itself 
evil.  For  if  once  evil  in  itself  it  must  eternally  and  universally 
be  so,  and  consequently  even  in  marriage  itself,  that  as  to  sen- 
sual pleasure  being  the  same  with  fornication  or  adultery. 
But  sensual  pleasure  is  not  evil  in  marriage,  therefore  not  in 
itself  or  as  such.  This  is  demonstration.  *  *  *  *  We  will 
state  the  question  *  *  *  and  it  shall  be  whether  the  pleasure  of 
the  sixth  sense  have  any  moral  turpitude  in  it.  Wherein  I 
will  venture  to  pronounce  that  it  has  not  as  such.  But  to  be 
captivated  to  that  pleasure,  so  as  to  make  us  less  capable  of 
that  which  is  better,  or  to  break  the  laws  of  what  is  just  and 
decorous,  this  is  the  turpitude  that  is  contracted  therein.  *  *  * 
If  there  be  no  moral  turpitude  in  the  simple  conception  of 
venerial  pleasure,  then  all  abstracted  acts  of  it,  such  as  vol- 


293 


OBSCENE   LITERATURE   AND  CONSTITUTIONAL  LAW. 

untary  pollution,  lascivious  embraces,  etc.,  must  be  accounted 
lawful,  which  are  yet  condemned  by  all  moral  and  divine 
writers.  The  reason  for  the  consequence  is,  because  there 
seems  to  be  nothing  in  such  abstract  act  besides  the  simple 
perception  of  the  pleasure  of  the  sixth  sense.  For,  as  for  ex- 
cess, captivation  of  spirit,  too  sensitive  applications  and  the 
like,  these  are  merely  accidental,  and  equally  incident  to  the 
same  acts  in  all  other  circumstances."24 

JOHN   STUART   MILL. 

"Baron  Wilhelm  von  Humboldt,  in  an  excellent  essay, 
[Sphere  and  Duties  of  Government]  from  which  I  have  al- 
ready quoted,  states  it  as  his  conviction  that  engagements 
which  involve  personal  relations  or  services  should  never  be 
legally  binding  beyond  a  limited  duration  of  time;  and  that 
the  most  important  of  these  engagements,  marriage,  having 
the  peculiarity  that  its  objects  are  frustrated  unless  the  feelings 
of  both  of  the  parties  are  in  harmony  with  it,  should  require 
nothing  more  than  the  declared  will  of  either  party  to  dissolve. 
*****  Even  if,  as  von  Humboldt  maintains,  the  circum- 
stances of  the  marriage  ought  to  make  no  difference  in  the 
legal  freedom  of  the  parties  to  release  themselves  from  the  en- 
gagement (and  I  also  hold  that  they  ought  not  to  make  much 
difference),  they  necessarily  make  a  great  difference  in  the 
moral  freedom.  A  person  is  bound  to  take  all  three  circum- 
stances into  account,  before  resolving  on  a  step  which  may  af- 
fect such  important  interests  of  others,  [that  is,  the  other 
spouse,  or  their  children,  no  one  else.]  *  *  *  Fornication,  for 
example,  must  be  tolerated."2" 

REPORT  OF  PROF.  FELIX  ADLER  AND  COMMITTEE  OF  FIFTEEN. 

"The  proposition  is  to  exclude  prostitution  from  the 
category  of  crime"  [and  treat  it  only  as  a  sin.]28 

PROF.  CH.  LETOURNEAU. 

"It  is  therefore  probable  that  a  future  more  or  less  dis- 
tant will  inaugurate  the  regime  of  monogamic  unions,  freely 
contracted,  and,  at  need,  freely  dissolved  by  simple  mutual  con- 
sent, as  is  already  the  case  with  divorces  in  various  European 
countries — at  Geneva,  in  Belgium,  in  Roumania,  etc.,  and  with 
separation  in  Italy.  In  these  divorces  of  the  future,  the  com- 

*The  Theory  and  Regulation  of  Love,  pp.  92-99-171-173-179. 
»On   Liberty,   pp.   165-172,   174,'  Burt   Edition. 
"The  Social  Evil,  p.  177. 

294 


UNCERTAINTY  OF  THE 

munity  will  intervene  only  in  order  to  safeguard  that  which 
is  of  vital  interest  to  it — the  fate  and  education  of  the 
children."27 

HERBERT   SPENCER. 

"As  monogamy  is  likely  to  be  raised  in  character  by  a 
public  sentiment  requiring  that  the  legal  bond  shall  not  be  en- 
tered into  unless  it  represents  the  natural  bond;  so  perhaps 
it  may  be  that  the  maintenance  of  the  legal  bond  will  come 
to  be  held  improper  if  the  natural  bond  ceases.  *  *  *  * 

"Whereas  at  present  the  union  by  law  is  thought  the  more 
important  and  the  union  by  affection  the  less  important,  there 
will  come  a  time  when  union  by  affection  will  be  held  of 
primary  moment,  and  the  union  by  law  as  of  secondary 
moment."28 

WORDSWORTH    DONISTHORPE,  M.  P. 

"If  permanent  unions  are  the  natural  outcome  of  civilized 
instincts,  they  will  come  without  the  assistance  of  the  sexual 
tinker.  If  they  are  not,  then  we  are  fighting  against  nature 
as  the  Titans  warred  on  the  gods,  in  vain.  The  system  is 
artificial  and  rotten  and  must  fall.  For  my  part,  I  do  not  be- 
lieve that  even  the  approximation  to  monogamy  observable  to- 
day among  civilized  races  could  have  been  imposed  upon  them 
from  without.  Even  the  terrors  of  religion  could  not  have 
prevailed  against  the  impulses  of  love,  any  more  than  the  ter- 
rors of  the  deep  prevailed  against  the  voices  of  the  siren. 
Throughout  all  the  ages  Religion  has  conformed  to  the  pre- 
vailing sexual  customs.  The  gods  of  Olympus  sided  with  the 
abductors  of  Briseis ;  the  god  of  the  Hebrews  rewarded  the 
virtue  of  Solomon  with  hundreds  of  wives  and  concubines ; 
the  god  of  theJCoran  offers  eternal  promiscuity  to  the  faith- 
ful, and  the  god  of  the  dark  ages  only  followed  the  rule  binding 
the  gods  generally,  by  enjoining  monogamy  on  all  who  would 
be  saved.  No ;  the  tendency  comes  from  within.  I  believe  in 
monogamy,  not  because  it  is  good  for  the  race,  not  because 
it  is  good  for  the  husband,  not  because  it  is  good  for  the 
children,  but  because  an  uncoerced  monogamy,  the  result  of  a 
state  of  evolution  not  yet  attained,  will  be  best  for  each  and 
all."29 

C.  STANISLAND  WAKE. 

"Some  explanation  is  perhaps  due  why  sexual  morality 

"Evolution   of  Marriage,   p.   358. 

Principles  of  Sociology,  v.  1,  part  2,  p.  765  Appleton's  Edition. 

"Law  in  a  Free  State,  p.  211. 

295 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

has  not  been  more  fully  considered  in  the  following  pages. 
Its  phenomena  are  frequently  referred  to  when  describing  the 
character  of  particular  peoples,  but  the  subject  embraces  so 
wide  a  range  that  it  was  found  impossible  to  do  it  justice  in 
the  present  work.  Moreover,  as  most  of  those  phenomena 
are  wanting  in  an  element,  injury  to  others,  which  is  essential 
to  the  idea  of  immorality  they  are  better  fitted  for  independent 
inquiry."30 

DR.    HAVELOCK  ELLIS. 

"The  State  regulation  of  marriage  has  undoubtedly  played 
a  large  and  important  part  in  the  evolution  of  society.  At 
the  present  time  the  advantages  of  this  artificial  control  no 
longer  appear  so  obvious  (even  when  the  evidence  of  law 
courts  is  put  aside)  ;  they  will  vanish  altogether  when  women 
have  attained  complete  economic  independence.  *  *  * 

"Sexual  relationships,  so  long  as  they  do  not  result  in 
the  production  of  children,  are  matters  in  which  the  com- 
munity has,  as  a  community,  little  or  no  concern,  but  as  soon 
as  a  sexual  relationship  results  in  the  pregnancy  of  the  woman 
the  community  is  at  once  interested.  It  is  at  this  point 
clearly  the  duty  of  the  state  to  register  the  relationship."81 

EDWARD  CARPENTER. 

"Thus  the  family  institution  in  its  present  form,  and  as 
far  as  that  form  may  be  said  to  be  artificial,  will  doubtless 
pass  away.  *  *  *  While  to-day  this  sight  [of  offspring]  recon- 
ciles husband  and  wife  to  the  legal  chains  which  perforce  hold 
them  together,  in  a  free  society,  we  may  hope,  it  will  more 
often  be  the  sign  and  seal  of  a  love  which  neither  requires  or 
allows  any  kind  of  mechanical  bond."32 

ELSIE  CLEWS  PARSONS,  PH.D. 

"We  have,  therefore,  given  late  marriage  and  the  passing 
of  prostitution,  two  alternatives,  the  requiring  of  absolute  chas- 
tity of  both  sexes  until  marriage  or  the  toleration  of  freedom 
of  sexual  intercourse  on  the  part  of  the  unmarried  of  both 
sexes  before  marriage,  i.  e.,  before  the  birth  of  offspring.  In  this 
event  condemnation  of  sex  license  would  have  a  different  em- 
phasis from  that  at  present.  Sexual  intercourse  would  not 
be  of  itself  disparaged  or  condemned,  it  would  be  disapproved 

^Evolution  of  Morality,  v.  1,  p.   VI. 

^Revised  reprint  from  Westminster  Review,  Oct.,  1888. 

82Loves   Coming   of  Age,   pp.    147-148. 

296 


UNCERTAINTY  OF   THE  "MORAL"   TEST  OF  OBSCENITY. 

-of  only  if  indulged  in  at  the  expense  of  health  or  of  emotional 
or  intellectual  activities  in  oneself  or  in  others.  As  a  matter  of 
fact,  truly  monogamous  relations  seem  to  be  those  most  con- 
ducive to  emotional  or  intellectual  development  and  to  health, 
so  that,  quite  apart  from  the  question  of  prostitution,  pro- 
miscuity is  not  desirable  or  even  tolerable.  It  would,  there- 
fore,  seem  well  from  this  point  of  view  to  encourage  early  trial 
marriage,  the  relation  to  be  entered  into  with  a  view  to  per- 
manency, but  with  the  privilege  of  breaking  it  if  proved  un- 
successful, and  in  the  absence  of  offspring  without  suffering 
any  great  degree  of  public  condemnation."33 

GEOFFREY  MORTIMER. 

"Strictly  speaking,  a  marriage  is  felicitious  when,  through 
a  fortunate  chain  of  circumstances,  there  is  complete  mental 
and  physical  adaptation  of  two  fervid  lovers  to  each  other's 
tastes,  opinions,  sympathies  and  passional  desires.  *  *  *  * 
Thousands  of  persons  gifted  with  insight  and  social  pre- 
science, and  endowed  with  a  zeal  for  the  welfare  of  humanity, 
are  convinced  by  study,  observation,  and  mature  reflection  that 
the  single  lifelong  union  of  the  sexes  is  not  adapted  in  the 
highest  sense  to  the  individual  and  collective  needs  and  desires 
of  our  age,  and  that  such  associations  will  be  even  less  fitted 
to  survive  in  the  society  of  the  near  future.  *  *  *  *  Every 
marriage  is  a  trial,  an  experiment  which  may  fail  or  succeed. 
*  *  *  *  Marriage  must  be  free.  Lovers  when  they  join 
hands  must  agree  to  live  together  so  long  as  the  natural  tie 
of  affection  holds  them  with  its  silken  strands.  Any  other 
pledge,  civil  or  religio.us,  mocks  at  morality,  derides  the 
promptings  of  a  healthy  conscience  and  scoffs  at  reason."34 

PROF.   WESTERMARCK. 

"When  both  the  husband  and  wife  desire  to  separate,  it 
seems  to  many  enlightened  minds  that  the  State  has  no  right 
to  prevent  them  from  dissolving  the  marriage  contract,  pro- 
vided that  the  children  are  properly  cared  for;  and  that  for 
the  children  also  it  is  better  to  have  the  supervision  of  one 
parent  only,  than  of  two  who  cannot  agree  [p.  398]  *  *  * 
It  is  obvious  that  the  extreme  horror  of  fornication  which  is 
expressed  in  the  Christian  doctrine  is  in  the  main  a  result 
of  the  same  ascetic  principle  which  declared  celibacy  superior 

"The  Family,  p.  848. 

»4Chapters  on  Human  Love,  pp.  221-284-286. 

297 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

to  marriage,  and  tolerated  marriage  only  because  it  could  not 
be  suppressed,  [p.  439.]  *  *  *  When  a  man  and  a  woman, 
tied  to  each  other  by  a  deep  and  genuine  affection,  decide 
to  live  together  as  husband  and  wife,  though  not  joined  in 
legal  wedlock,  the  censure  which  public  opinion  passes  upon 
their  conduct  seems  to  an  unprejudiced  mind  justifiable,  at 
most,  only  in  so  far  as  it  may  be  considered  to  have  been 
their  duty  to  comply  with  the  laws  of  their  country  and  to 
submit  to  a  rule  of  some  social  importance. 

"Sexual  intercourse  between  unmarried  persons  of  oppo- 
site sex  is  thus  regarded  as  wrong  from  different  points  of 
view  under  different  conditions,  social  or  psychical,  and  all 
of  these  conditions  are  not  in  any  considerable  degree  com- 
bined at  any  special  stage  of  civilization."  [p.  440.]  M 

DR.    DE    FLEUREY. 

"If  we  look  at  love  from  the  point  of  view  of  physiology 
or  of  natural  philosophy,  platonic  love  will  surely  appear  to 
us  the  most  harmful  as  it  is  the  most  immoral."8* 

As  I  am  reading  proof  there  comes  to  me  a  journal 
edited  by  John  Trevor,  the  author  of  "My  Quest  for  God" 
and  Pastor  of  the  Labor  Church,  Manchester,  England.  From 
his  words  I  quote  the  following  few  paragraphs: 

"I  know  a  young  man  of  unusual  ability  in  his  profession 
who  has  been  giving  his  energies  devotedly  to  his  work,  while 
his  brain  was  being  wasted  by  the  results  of  the  suppression 
of  passion.  The  consequence  is  that  he  has  had  to  be  sent 
to  a  lunatic  asylum.  Even  should  he  recover,  his  whole  life 
is  blighted.  He  has  been  robbed  of  his  manhood,  of  his 
personality,  of  that  love  without  which  life  is  not  life. 

"The  doctrine  of  the  essential  antagonism  of  the  Spirit 
and  the  Flesh  is  a  fiction  of  Traditional  Religion  which 
Natural  Religion  must  destroy.  It  is  only  in  harmonious 
blending  of  the  two  that  the  fullness  of  Manhood  and  Wo- 
manhood is  realized.  The  passion  of  love  suppressed  like  a 
disease  has  developed  a  mass  of  festering  sores. 

"One  of  the  most  amazing  facts  in  the  history  of 
Humanity  is  this  of  Man's  abject  submission  to  unnatural 
restraints  in  the  name  of  some  Revelation  from  God.  When 
incapable  of  submission,  he  has  called  his  revolt  a  Sin — a 

"The   Origin  and  Development   of  the  Moral   Ideas,   vol.   2,   at  pages   noted-, 
•"Medicine  and  Mind,  p.  866,   et  seq. 


UNCERTAINTY  OF  THE      MORAL      TEST  OF  OBSCENITY. 

still  more  groveling  submission..  For  many  hundreds  of 
years  Man  has  tried  to  submit  to  an  unnatural  standard  of 
virtue,  not  having  the  virtue  of  revolt. 

"Natural  Religion,  to  grow  up  naturally,  demands  a 
Natural  Life.  The  right  to  live  naturally  Traditional  Re- 
ligion denies,  and  the  State  enforces  the  denial. 

"When  a  plant  you  cherish  is  about  to  flower,  you  are 
more  careful  than  ever  that  its  conditions  shall  be  such  as 
Nature  requires.  When  youth  is  about  to  flower,  the  con- 
ditions imposed  are  as  unfavorable  as  can  well  be  imagined. 

"To  return  to  the  symbol  of  the  acorn — as  the  fall  of 
the  acorn  from  the  oak  is  the  birth  of  a  soul  into  the  world. 
Puberty  is  the  swelling  of  the  acorn  under  the  genial  influences 
of  Spring.  Then  the  soul  of  youth  has  need  of  Knowledge 
and  Culture  and  Freedom  for  Self-expression.  These  the 
world  refuses.  This  is  the  Tragedy  of  Youth.  The  world 
sears  with  a  hot  iron  the  acorn  that  begins  to  swell.  The 
man  never  recovers  wholly  from  the  injury  done  to  the 
youth.  I  have  no  doubt  the  same  is  true  of  the  woman  also. 

"To  make  man  submit  to  this  irremediable  injury,  and 
to  provide  him  with  palliatives  of  its  consequences,  is  one 
of  the  principal  functions  of  the  churches.  Much  of  the 
social  work  of  the  churches  to-day  is  inspired  by  the  neces- 
sity of  keeping  young  people  from  thinking  of  sexual  matters. 
It  is  called  keeping  them  off  the  streets. 

"The  churches  are  the  wreckers  of  youth,  and  live  largely 
on  the  results  of  their  wreckage.  The  Right  of  Youth  to 
Self-expression  through  love  is  the  great  principle  over  which 
the  coming  fight  must  be  waged  between  Tradition  and  Life. 

"The  Redemption  of  Love  from  the  curse  of  Tradition 
in  the  name  of  Natural  Religion  is  the  work  to  which  I  must 
devote  the  rest  of  my  life/'87 

PREDESTINATION    AND    IMMORALITY. 

This  then  brings  me  back  to  the  starting  point  of  the 
conflict  between  religious  morals  and  ethical  science  which, 
in  one  of  his  essays,  Thoreau  sums  up  in  these  words :  "To 
regret  religion  is  the  first  step  towards  moral  excellence." 
Macaulay  in  his  essay  on  "Civil  disabilities  of  the  Jews,"  uses 
this  language :  "The  doctrine  of  predestination,  in  the  opinion 
of  many  people,  tends  to  make  those  who  hold  it  utterly  im- 
moral. And  certainly  it  would  seem  that  a  man  who  believes 

"The  One  Life.     No.  1,  pp.  19-20. 

299 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

Tiis  eternal  destiny  to  be  already  irrevocably  fixed  is  likely  to 
indulge  in  passions  without  restraint  and  to  neglect  his  relig- 
ious duties." — Italics  are  mine,  T.  S. 

In  his  youth  the  illustrious  Milton  was  inoculated  with 
the  doctrine  of  predestination,  and  it  may  be  possible  that 
it  was  this  which  first  determined  his  conclusions  concerning 
divorce  and  polygamy,  as  to  which  Macaulay  remarks  that  he 
does  not  think  "any  reader  acquainted  with  the  history  of  his 
life  ought  to  be  much  startled  in  the  matter."  All  this  suggests 
again  the  very  practical  question  whether  the  doctrine  of  pre- 
destination, and  Milton's  views  about  divorce  and  polygamy 
and  the  numerous  opinions  of  secular  scholars  herein  quoted, 
are  criminally  obscene  because  a  court  and  jury  believe  the 
"tendency"  of  these  doctrines  "is  to  deprave  and  corrupt  the 
morals  of  those  whose  minds  are  open  to  such  influence  and 
into  whose  hands  a  publication  of  this  sort  may  fall."8* 

Judges,  with  Comstockian  or  ascetic  minds  or  some  pe- 
culiar religious  bent,  may  answer  "yes"  and  can  point  to  a 
considerable  quantity  of  loose  judicial  utterance  to  support 
them.  An  eminent  English  law-writer  has  answered  in  the 
negative.  He  says :  "I  have  found  no  authority  for  the  prop- 
osition that  the  publication  of  a  work,  immoral  in  the  wider 
sense  of  the  word,  is  an  offense.  A  man  might  with  perfect 
decency  of  expression,  and  in  complete  good  faith,  maintain 
doctrines  as  to  marriage,  the  relation  of  the  sexes,  the  obliga- 
tion of  truthfulness,  the  nature  and  limit  of  the  right  of 
property,  which  would  be  regarded  as  immoral  by  most  people, 
and  yet  (I  think)  commit  no  crime.  Obscenity  and  immoral- 
ity in  this  wide  sense  are  entirely  distinct  from  each  other. 
The  language  used  in  some  of  the  cases  might  throw  doubt 
on  this,  but  I  do  not  think  that  any  instance  can  be  given  of 
the  punishment  of  a  decent  and  bona  fide  expression  of  opin- 
ions commonly  regarded  as  immoral."39  Italics  are  mine,  T.  S. 

Who  is  right  ?  Sir  James  Stephens  or  the  loose  language 
used  in  some  cases?  Even  if  we  follow  Stephens,  what  are 
the  criteria  of  "decent  expression  of  opinion?"  Where  does 
the  legislative  enactment  determine  the  question?  How  can 

»U.  S.  vs.  Debout,  28  Fed.  R.  523. 

89Sir  James  Stephen's  "Digest  of  the  Criminal  Law,"  page  97.  If  one  were 
to  consider  critically  the  matter  of  finding  the  dividing  line  between  "immorality 
in  the  broader  sense"  and  other  kinds  of  immorality,  he  might  conclude  with  Dr. 
A.  W.  Herzog  that  "Morals  are  imaginary."  See  Harper's  Weekly  June  12 — 1909. 
For  other  unorthodox  views  of  sexual  morality,  see  "  Blasting  the  Rock  of  Ages," 
by  Harold  Bolce,  in  The  Cosmopolitan  Magazine  for  May,  1909. 

300 


UNCERTAINTY  OF  THE      MORAL      TEST  OF  OBSCENITY. 

a  man  from  reading  the  statute  or  even  the  judicial  legislation 
under  it  inform  himself  by  which  standard  of  "decent  expres- 
sion," or  of  "morals,"  his  production  will  be  judged  "obscene?" 
It  must  now  be  self-evident  that  every  conviction  under 
"obscenity"  statutes  is  according  to  an  ex  post  facto  standard 
of  judgment,  dictated  by  caprice,  not  by  any  legislatively 
created  criteria  of  guilt. 

CONCERNING    "  MORAL    POISON." 

Suppose  a  person  to  be  indicted  for  selling  a  deadly  poison 
in  violation  of  law.  It  is  proven  or  admitted  that  the  defend- 
ant sold  some  of  the  alleged  poison  to  many  persons,  wha 
ate  heartily  thereof.  No  witness  is  introduced  to  prove  that 
a  chemical  analysis  has  been  made  and  that  such  proves  the 
substance  in  question  to  be  a  deadly  poison.  No  one  testifies 
that  any  of  those  who  have  eaten  of  it  were  injured  thereby. 

Suppose  then  that  in  spite  of  these  facts  the  court  should 
submit  to  the  jury  the  question  of  guilt,  and  instruct  them  that 
they  may  look  at  the  alleged  poison,  and  smell  of  it,  and  that 
if  they  do  not  like  its  appearance,  or  smell,  they  are  author- 
ized to  believe  it  to  be  poisonous,  and  must  find  the  defendant 
"guilty."  It  requires  no  argument  for  anyone  to  see  the  out- 
rageousness  and  utter  lawlessness  of  such  a  proceeding. 

In  all  cases  of  "obscenity"  juries  are  instructed  to  de- 
termine guilt  according  to  their  conviction  as  to  the  existence 
of  "moral  poison"  which,  in  all  its  varied  forms  of  statement,  is 
a  mere  figure  of  speech,  or  a  doubtful  speculation  without 
definite  tests,  and  so  guilt  is  determined  by  just  such  uncer- 
tain, whimsical  "standards"  as  we  have  probably  agreed,  just 
hereinbefore,  to  be  outrageous.  Why  then  don't  judges  see  the 
outrageousness  of  it  and  discharge  all  such  defendants?  In 
the  case  of  actual  poison  we  all  know  of  the  existence  of  con- 
clusive and  certain  tests  and  the  very  fact  of  that  knowledge 
makes  us  see  the  necessity  for  insisting  upon  their  application 
in  every  such  trial.  In  the  case  of  "obscenity"  we  know  of  no 
such  certain  standard  for  determining  (the  existence  of  "moral 
poison"  and  so  have  not  that  knowledge  to  remind  us  of  the 
necessity  for  having  and  applying  such  certain  standards  of 
judgment,  and  popular  "ethical"  sentimentalizing  and  the  fear 
of  the  judgment  of  "moral"  snobs  precludes  the  efficacy  of 
those  other  reminders  which,  at  least  to  lawyers,  should  suggest 
the  indispensable  necessity  of  mathematically-certain  criteria 
of  guilt. 

301 


CHAPTER  XVI. 
VARIETIES  OF  OFFICIAL  MODESTY.78 

Here  we  will  concern  ourselves  only  with  the  further 
demonstration  of  the  uncertainty  of  these  laws  by  evidences 
taken  from  our  variety  of  judicial  and  official  manifestations 
of  modesty.  Later  we  will  make  some  unofficial  applications  of 
the  judicial  tests  of  obscenity  to  demonstrate  their  utter 
absurdity. 

The  early  prosecutions  for  obscenity  of  literature  and  art 
occurred  when  the  influence  of  puritanism  was  stronger  than 
at  present,  and  a  court  said:  "I  am  for  paying  some  respect 
to  the  chastity  of  our  records."74 

And  so  the  rule  came  to  be  that  indictments  need  not  re- 
produce the  alleged  obscenity,  and  that  rule  is  still  in  force. 
If  "records"  can  be  literally  "chaste,"  then  they  can  also  be 
deprived  of  that  chastity  by  rape.  If,  on  the  other  hand, 
chastity  is  not  a  real  quality  of  records,  then  we  have  the 
spectacle  of  a  judicial  tribunal  solemnly  and  deliberately  cre- 
ating rules  of  pleading  upon  the  foundation  of  a  mere  figure 
of  speech,  misconceived  as  an  analogy.  The  English  courts 
have  taken  the  latter  view,  and  upon  having  their  attention 
called  to  the  American  precedents,  they  pronounced  our  ju- 
dicial reason  for  them  too  "fanciful  and  imaginary."75 

The  courts  of  olden  times  seem  to  have  given  but  a  lim- 
ited sanction  to  judicial  prudery  or  to  the  official  moral  snob- 
bery over  "chastity  of  records."  I  infer  this  from  the  follow- 
ing extract  taken  from  "An  Explanation  Concerning  Obsceni- 
ties," written  by  the  learned  Pierre  Bayle  in  the  seventeenth 
century.  He  says: 

"When  a  nation  [are]  agreed  in  calling  some  words  im- 
modest ...  all  the  members  of  the  society  are  obliged  to 
respect  it.  The  courts  of  justice  afford  us  a  remarkable  instance 
of  it,  for  lawyers  are  not  allowed  to  repeat  such  words  when 

"Republished  from  The  Am.  Journal  of  Eugenics,  Dec.,  1907,  and  The  Albany 
Law  Journal,  Aug.,  1908. 

T*Cow.  vs.  Sharpless,  2  Serg.  N  Rawle,  91-113  (Penn.  1815).  Com.  vs.  Tar- 
box,  1  Cush.  (Mass.)  66.  Com.  vs.  Holmes,  17  Mass.  336. 

"Bradlaugh  vs.  Queen,  S  Q.  B.  607-620.  See  also  Peop.  vs.  Daniley,  61 
Hun,  679,  and,  State  vs.  Hanson  23  Tex.  284. 

302 


VARIETIES  OF  OFFICIAL  MODESTY. 

they  plead  for  punishment  of  those  who  have  used  them  in 
reviling  their  neighbors.  They  will  have  public  modesty  re- 
spected in  the  hearing  of  a  cause ;  but  when  they  judge  by  re- 
port, they  not  only  permit  the  reporter  to  mention  the  very 
words  of  the  offender,  though  never  so  obscene,  but  also 
command  him  to  do  it.  This  I  have  from  a  counselor  in  the 
Parliament  of  Paris,  who  told  me  within  these  few  years, 
that,  having  used  a  circumlocution  the  first  time  he  reported 
such  a  cause,  the  president  gave  him  to  understand  that  there 
was  no  occasion  to  have  a  regard  to  chaste  ears,  but  to  judge 
of  the  nature  of  the  offence,  and  that  therefore  he  was  obliged 
to  speak  the  very  word  it  consisted  in.  I  fancy  the  Inquisition 
uses  the  same  method/"' 

We  have  not  to  go  far  back  in  our  own  juridical  history 
to  find  a  very  different  judicial  conception  of  modesty  from 
that  which  is  now  dominant,  and  one  wherein  "nakedness  was 
so  little  feared  that  adulterous  women  were  led  naked  through 
the  streets."77 

In  England,  for  several  centuries,  before  and  during  the 
eighteenth  century,  and  probably  later,  in  order  to  forestall 
spurious  heirship,  the  ecclesiastical  courts  compelled  widows, 
claiming  to  be  pregnant  by  their  deceased  husbands,  to  submit 
to  a  physical  examination  by  the  sheriff,  in  the  presence  of 
twelve  knights  and  as  many  women.  Later,  it  became  the 
practise  also  judicially  to  prescribe  the  place  of  her  abode 
during  pregnancy,  and  to  require  that  parturition  take  place  in 
the  presence  of  five  women  appointed  by  the  next  of  kin. 
Other  women,  to  a  fixed  limit,  might  be  present ;  but  all  must 
first  submit  to  a  physical  examination  as  to  their  own  preg- 
nancy, before  being  admitted  to  the  chamber  of  parturition.78 

The  above-described  mode  of  judicially  determining  ma- 
terial sexual  facts,  and  the  "judicial  congress,"  which  will  be 
presently  discussed,  are  both  the  outgrowth  of  a  very  ancient 
custom  of  judicially  and  ecclesiastically  determining  the  virgin- 
ity of  women  by  physical  examination.  Even  in  the  last  decade 
of  the  nineteenth  century  a  Morman  chief  of  police  in  Salt 
Lake  City,  Utah,  (but  without  statutory  authority)  compelled 
some  young  girls,  arrested  on  a  suspicion  of  being  "street- 
walkers " — which,  however,  proved  unfounded  — to  submit, 

7flV.   5,   Historical  and  Critical  Dictionary,   848.      Edit,   of  1737. 
"Remy   de  Gourrnont,   Le   Livre   des   Masques,   p.    184,   requoted    from   Ellis, 
Studies  in  Psychology  of  Sex:  Modesty,  p.  21. 

'"Nelson's  Rigktt  of  the  Clergy,  pp.   78-80.      (A.   D.  1709.) 

303 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

at  the  police  station,  to  an  examination  as  to  their  virginity. 
A  decade  later  a  "gentile"  judge  of  the  Juvenile  Court  in  the 
same  city  ordered  a  like  examination  under  like  circumstances, 
and  again  without  finding  any  evidence  of  lost  virginity.  If 
it  were  not  for  our  legislatively  enforced  ignorance  of  sexual 
matters  it  would  have  been  known  that  examinations  of  the 
hymen  furnish  no  evidence  as  to  chastity.79 

Out  of  such  practises  among  the  early  Christians  evolved 
the  "judicial  congress,"  by  which  a  wife  might  demand  of  a 
husband  charged  with  impotency  in  an  action  for  marriage 
dissolution,  or  the  husband  might  offer  to  give  ocular  demon- 
stration of  his  capacity  for  copulation,  by  its  consummation 
in  the  very  presence  of  the  court. 

"Pope  Gregory  the  Great,  who  was  raised  to  the  pontifi- 
cate in  590,  appears  to  have  been  the  first  to  confer  upon 
bishops  the  right  of  deciding  this  description  of  questions. 
The  great  antiquity  of  this  custom  is  proved  by  the  seven- 
teenth article  of  the  Capitulars  of  Pepin,  in  the  year  752, 
which  bears  a  direct  allusion  to  it;  inasmuch  as  that  article 
established  as  a  principle  that  the  impotency  of  a  husband 
should  be  considered  as  a  lawful  cause  for  divorce,  and  that  the 
proof  of  such  impotency  should  be  given,  and  the  fact  verified, 
at  the  foot  of  the  cross.  .  .  That  the  'Congress'  originated 
with  the  church,  who  considered  it  as  an  efficacious  means  for 
deciding  questions  of  impotency,  is  still  further  proved  by  the 
President  Boutrier  and  by  other  writers,  who  assert  that  the 
ecclesiastical  judges  of  other  times  were  alone  empowered 
(to  the  exclusion  of  all  secular  ones)  to  take  cognizance  of 
cases  of  impotency.  It  is  well  attested  that  during  the  six- 
teenth and  seventeenth  centuries  all  the  courts  of  law  in  France 
held  the  opinion  that  a  marriage  be  annulled  on  the  demand  of 
a  wife  who  claimed  the  Congress."80 

The  erudite  Pierre  Bayle  has  preserved  for  us  some  of 
the  arguments  by  which  was  justified  this  practise  of  judicial 
decrees  ordering  a  sexual  intercourse  in  the  presence  of  the 
court,  as  a  means  of  determining  an  issue  of  potency.  He 
quotes  as  follows: 

"The  congress  is  the  usual  and  most  certain  proof  that 
can  be  used  in  a  case  of  impotency;  witness  Lucian  in  his 
Eunuchus.  'Nee  inimicum  videri  debet  probationis  genus 

wMaj.  R.  W.  Shufeldt,  M.D.,  in  Pacific  Medical  Journal  for  January,  1906- 
"Davenport,  On  the  Powers  of  Reproduction,  p.  52. 

304 


VARIETIES  OF  OFFICIAL   MODESTY. 

quod  solum  est,'  says  Quintilian  in  his  seventh  declamation; 
at  least  the  bishops'  courts  in  France  have  admitted  it,  and  the 
court  has  authorized  it  by  several  decrees,  particularly  that 
of  the  20th  of  January,  1597,  made  against  one  who,  being 
accused  of  wanting  testicles,  would  not  submit  to  it.  ... 

"Certainly  the  best  precaution  that  can  be  used  is  to 
come  to  an  actual  trial ;  especially  when  we  are  induced  to  it 
by  a  desire  of  peace,  which  will  better  excuse  a  lawful  copula- 
tion, though  done  openly,  than  all  clandestine  doings  can 
justify  an  unlawful  divorce.  Otherwise  it  would  be  an  absurd 
thing  to  admit,  for  the  proof  of  adultery,  the  evidence  of  one 
who  should  say  that  he  has  seen,  and  likewise  that,  in  order 
to  avoid  the  supposition  of  a  child,  the  civil  law  should  permit 
the  inspection  of  a  woman ;  and  yet  that,  to  justify  the  validity 
of  a  marriage  (which  is  a  thing  much  more  important),  one 
should  be  unwilling  to  see,  impactum  Thyrsum  horto  in  cupidi- 
nis.  .  .  . 

"It  is  to  no  purpose  to  say  that  his  wife,  pretending  to 
modesty  when  it  is  too  late,  and  upon  an  occasion  when  it 
is  not  necessary,  objects  that  she  would  be  ashamed  to  have 
her  secret  parts  inspected,  and  to  go  to  the  congress ;  for  she 
must  be  forced  to  it,  since  she  has  brought  things  to  such  a 
pass. 

"I  add,  that  in  such  cases  the  inspection  is  usual,  so  that 
it  cannot  be  said  that  there  is  any  injustice  in  requiring  that 
which  is  practiced  by  the  common  law:  for  we  learn  from 
St.  Cyprian  in  his  epistles,  and  from  St.  Augustine  and  St. 
Ambrose,  that  in  cases  relating  to  the  defloration  of  virgins 
inspection  has  always  been  practiced;  nay,  we  are  told  by 
Clemens  Alexandrinus  (7  Strom.),  and  by  Suidas  in  verbo 
Jesus,  that  the  Virgin  Mary  submitted  to  it,  the  sanhedrim  of 
the  high  priests  having  ordered  that  she  should  be  inspected, 
to  discover  whether  she  remained  a  virgin,  and  whether  our 
Lord,  whom  they  had  a  mind  to  adopt  into  their  own  order, 
should  be  matriculated  in  their  registers  as  the  son  of  Joseph, 
or  as  the  son  of  the  living  God  and  of  a  virgin-mother.  Chaf- 
fangeus  recites  the  story  at  length  in  the  fourth  part  of  his 
Catalogus  gloria  mundi,  distinct.  6."81 

The  date  of  origin  of  this  "judicial  commerce"  appears 
to  be  in  doubt.  In  the  district  of  the  Parliament  of  Paris  it 
was  abolished  February,  1677,  and  the  judicial  custom  then 

81 4,   Bayle's  Historical  and  Critical  Dictionary,   805.     Edition  1787. 

305 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

reverted  to  the  physical  examination  of  the  sexual  parts ;  but 
elsewhere  the  trial  by  judicial  commerce  continued  to  be  the 
accredited  method  of  determining  impotence.  From  the  stand- 
point of  our  present  modesty,  the  physical  examination,  not 
in  the  presence  of  the  court,  did  not  much  improve  the 
situation,  for  we  are  informed  that  "the  men  have,  in  some 
trials,  inspected  the  women,  and  the  women  have  been  ad- 
mitted to  inspect  the  men."  At  present,  the  former  would 
not  be  deemed  so  intolerable  if  the  men  were  physicians,  but 
to  have  women  physicians  thus  examine  men  would  seen  to 
us  much  more  intolerable.  This  distinction,  let  it  be  remem- 
bered, has  no  logical  foundation,  but  rests  only  in  our  differ- 
ence of  educated  emotions  as  associated  with  the  differences 
of  sex.82 

CONFLICT  AS   TO   THE   NUDE  IN    ART. 

Very  many  people  to  this  day  entertain  the  same  view 
about  the  immorality  of  all  nudity  in  art  as  that  which  was 
expressed  by  St.  Chrysostom  in  these  words :  "A  naked  image 
and  statue  is  the  devil's  chair."83 

The  contrary  view  is  thus  expressed:  "Nakedness  is 
always  chaster  in  its  effects  than  partial  clothing.  A  study 
of  pictures  or  statuary  will  alone  serve  to  demonstrate  this. 
As  a  well-known  artist,  Du  Maurier,  has  remarked  (in 
Trilby),  it  is  'a  fact  well  known  to  all  painters  and  sculp- 
tors who  have  used  the  nude  model  (except  a  few  shady 
pretenders,  whose  purity,  not  being  of  the  right  sort,  has  gone 
rank  from  too  much  watching)  that  nothing  is  so  chaste  as 
nudity.  Venus  herself,  as  she  drops  her  garments  and  steps 
on  the  model-throne,  leaves  behind  her  on  the  floor  every 
weapon  in  her  armory  by  which  she  can  pierce  to  the  grosser 
passions  of  men/  Burton,  in  the  Anatomy  of  Melancholy 
(Part  III,  Sec.  ii,  subsec.  iii),  deals  at  length  with  the  'allure- 
ments of  love/  and  concludes  that  the  'greatest  provocations 
of  lust  are  from  our  apparel.'  "84 

The  Rev.  Frederick  George  Lee,  in  an  expostulation  with 
the  Royal  Academy  of  Art,  at  considerable  length  endorses 
the  position  of  St.  Chrysostom,  above  quoted ;  but  the  academy 
continues  to  hold  to  the  contrary  view.  Dr.  Lee  in  part  says : 

B4,  Bayle's  Historical  and  Critical  Dictionary  803  to  807.  Edition  of  1737. 
Davenport,  On  the  Powers  of  Reproduction,  pp.  47  to  60. 

8M    Just  and   Reasonable   Reprehension   against  Naked   Breasts,   28. 

•*Ellis,  Psychology  of  Sex:  Modesty,  39,  and  Erotic  Symbolism,  p.  15.  See 
also  Fables  of  the  Female  Sex,  p.  62.  (1766.) 

306 


VARIETIES  OF  OFFICIAL   MODESTY. 

"Permit  me,  in  the  remarks  being  made,  to  start  with  the 
axiom  that  nothing  should  be  represented  by  the  artist's  brush 
for  exhibition  in  public  which  may  not  be  rightly  and  properly 
looked  upon  by  the  people  in  general  (p.  7).  .  .  .  They 
[pictures  of  the  nude]  offend  against  Christian  morals,  di- 
rectly pervert  good  taste,  and  distinctly  maim  modesty  (p. 
10)." 

Further  on  he  tells  us  of  a  London  prostitute  who  thought 
to  make  some  honest  shillings  by  becoming  a  nude  model  to 
the  life-class  of  an  art  school.  After  much  hesitancy,  she 
disrobed,  and  from  behind  a  temporary  curtain  stepped  upon 
the  model's  stage. 

"On  doing  so,  and  finding  herself  suddenly  under  the 
glare  of  gaslight,  naked,  before  forty  or  fifty  students,  the 
poor  frightened  creature  threw  up  her  arms,  and  with  a  shriek 
fell  fainting  on  the  floor.  On  recovering,  she,  uttering  fear- 
ful language,  dashed  the  money  on  the  ground,  huddled  on  her 
garmets,  and  rushed  from  the  place  in  a  storm  of  passion."85 

Here,  then,  we  have  a  clear  portrayal  of  two  distinct 
and  conflicting  conceptions  of  modesty:  St  Chrysostom,  the 
Rev.  Dr.  Lee,  and  the  unfortunate  woman  representing  the 
one,  and  Du  Maurier,  the  professional  model,  and  the  sexual 
psychologist  representing  the  other. 

Our  obscenity  statutes  give  us  no  information  as  to  wheth- 
er the  legislature  intended  to  endorse  the  prostitute's  con- 
ception of  modesty,  or  that  of  the  clean-minded,  unblushing, 
and  unashamed  professional  models  who  daily  exhibit  them- 
selves in  nudity  before  the  life-classes  of  every  art  school  in 
the  civilized  world.  While  the  statute  gives  us  no  clew  as  to 
which  conception  of  modesty  is  adopted,  the  judicial  legislation 
upon  the  subject  seems  to  favor  the  latter.86 

RABELAIS  AND  BOCCACCIO. 

In  England  a  publisher,  to  escape  criminal  punishment, 
has  consented  to  destroy  his  stock  of  Rabelais  and  Boccaccio.87 
In  Indiana  a  village  bookseller  was  induced  to  plead  guilty 
and  pay  a  fine  of  $5  for  sending  through  the  mail  an  obscene 
book,  to  wit,  Decameron  of  Boccaccio.  On  the  strength  of 
this  a  postofnce  inspector  affirms  "this  book  has  been  declared 

MLee,  Immodesty  in  Art,   13. 

^People  vs.  Mueller,  96  N.  Y.  408,  48  Am.  Rep.  635.  U.  S.  vs.  Smith,  45 
Fed.  Rep.  477. 

•TSee  Buchanan's  On  Descending  Into  Hell,  p.  39. 

307 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

non-mailable."88  The  United  States  District  court  of  Utah 
also  had  before  it  an  unexpurgated  edition  of  Boccaccio  on 
an  indictment  of  its  obscenity.  Accompanying  the  book  were 
some  loose  laid-in  pictures,  which  the  court  instructed  the 
jury  were  "obscene,  lewd,  and  lascivious  under  the  statute, 
and  constituted  the  very  kind  of  literature  that  the  law  was 
aimed  against."  No  instruction  was  given  to  the  jury  con- 
cerning the  unexpurgated  edition  of  Decameron,  nor  was  the 
question  of  its  obscenity  even  submitted  to  the  jury.  The 
judge  evidently  did  not  consider  it  obscene.89 

In  the  state  courts  of  New  York,  a  brief  to  the  contrary 
having  been  submitted  by  Mr.  Comstock,  it  was  decided  that 
Rabelais  and  Boccaccio  were  not  obscene.90 

After  the  foregoing  decision,  the  United  States  district 
Court  of  the  Western  District  of  the  Southern  District  of 
Ohio  fined  one  Stiefel  $5  for  sending  Decameron  by  express 
from  Cincinnati  to  Crawfordsville,  Ind.91  -f#,  MJL$S/JI# 

Which  of  these  conflicting  views  is  correct,  and  where 
does  the  statute  fix  the  standard  for  deciding  whether  Boccac- 
cio is  "obscene"  or  not? 

BRIEFER     MISCELLANY. 

In  a  former  chapter,  I  called  attention  to  the  case  of  Mrs. 
Carrie  Nation,  wherein  a  U.  S.  Commissioner  had  discharged 
her,  deciding  that  her  magazine  was  not  "obscene",  and  the 
postal  authorities  continued  to  exclude  it  from  the  mail  because 
it  was  "obscene." 

At  this  writing  the  case  of  the  Art  Students  League  Cata- 
logue is  yet  fresh  in  our  memory.  The  Post  Master  General 
had  declared  it  mailable.  Postal  Inspector  Comstock,  disagree- 
ing, made  arrests  under  the  N.  Y.  statute  against  "obscenity." 
A  great  protest  went  up  over  the  country.  The  accused  were 
induced  to  plead  guilty  and  received  a  suspended  sentence. 

Hereinbefore  I  wrote  of  Dr.  Parke's  arrest,  and  that  he 
had  been  bound  over  to  await  the  action  of  the  grand  jury, 
and  that  the  Federal  grand  jury  had  determined  that  his  book 
"Human  Sexuality"  was  not  "obscene."  He  was  indicted  and 
is  awaiting  trial.  What  kind  of  whim  will  determine  his 
guilt? 

"See  Frankenstein's  A  Victim  of  Comstockism,  pp.  16-17. 

"•See  Record  in  U.  S.  vs.  Shepard,  in  U.  S.  Circuit  Court  of  Appeal*. 
154,  165. 

"Matter  of  Worthington  Co.,  SO  N.  Y.  Sup.  361,  62d  St.  Rep.  116,  2J  L. 
R.  A.  110. 

308 


VARIETIES  OF  OFFICIAL   MODESTY. 

In  one  of  the  larger  cities  of  Massachusetts  an  influential 
business  man  was  arrested  for  dispensing  "obscene"  literature 
and  pleaded  guilty.  His  prominence  and  popularity  was  such 
that  all  newspapers  considerately  suppressed  mention  of  the 
fact,  and  I  am  making  only  a  vague  mention  of  it  so  as  not 
to  do  him  any  unnecessary  injury.  The  same  book  which  got 
him  into  trouble  has  had  a  New  York  market  for  over  a 
quarter  of  a  century,  and  one  of  the  chief  beneficiaries  of  its 
sale  has  been  a  frequent  contributor  to  the  N.  Y.  Society  for 
the  Suppression  of  Vice.  Mr.  Comstock  never  thought  the 
book  "obscene,"  and  like  Mr.  Colgate  (elsewhere  referred  to), 
the  N.  Y.  vendors  escape  prosecution. 

These  contradictions  between  postal  officials,  grand  juries, 
and  trial  juries  and  between  federal  and  state  authorities  under 
statutes  of  identical  wording,  could  be  multiplied  greatly. 
While  deeming  that  undesirable,  I  cannot  refrain  from  calling 
attention  to  the  case  of  People  vs  Eastman,  (188  N.  Y.  478) 
when  we  find  a  divided  court,  each  side  dogmatizing  against 
the  other  and  each  ignoring  the  statute,  leaving  the  non-legal 
motive  for  the  dogmas  quite  rarely  exposed. 

IS  THE  BIBLE  CRIMINALLY  "OBSCENE"  ? 

Under  the  laws  against  "obscene"  literature,  one  of  the 
first  American  prosecutions  of  note  was  that  of  the  dis- 
tinguished eccentric,  George  Francis  Train,  in  1872.  He  was 
arrested  for  circulating  obscenity,  which,  it  turned  out,  con- 
sisted of  quotations  from  the  Bible.  Train  and  his  attorneys 
sought  to  have  him  released  upon  the  ground  that  the  matter 
was  not  "obscene,"  and  demanded  a  decision  on  that  issue. 
The  prosecutor,  in  his  perplexity,  and  in  spite  of  the  protest 
of  the  defendant,  insisted  that  Train  was  insane.  If  the 
matter  was  not  "obscene,"  his  mental  condition  was  imma- 
terial, because  there  was  no  crime.  The  court  refused  to  dis- 
charge the  prisoner  as  one  not  having  circulated  obscenity, 
but  directed  the  jury,  against  their  own  judgment,  to  find  him 
not  guilty,  on  the  ground  of  insanity;  thus  by  necessary  im- 
plication deciding  the  Bible  to  be  criminally  obscene.  Upon 
a  hearing  on  a  writ  of  habeas  corpus,  Train  was  adjudged  sane 
and  discharged.  Thus  an  expressed  decision  on  the  obscenity 
of  the  Bible  was  evaded,  though  the  unavoidable  inference 
was  for  its  criminality.92 

"'For    partial   statement    see    Medico-Legal  Journal,    December,1906,    p.    490; 
also  Train's  published  autobiography,  My  Life  in  Many  States,  p.   828. 

309 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

In  his  autobiography,  Train  informs  us  that  a  Cleveland 
paper  was  seized  and  destroyed  for  republishing  the  same 
Bible  quotations  which  had  caused  his  own  arrest.  Here,  then, 
was  a  direct  adjudication  that  parts  of  the  Bible  are  criminally 
indecent,  and  therefore  unmailable.93 

In  1895  John  B.  Wise,  of  Clay  Center,  Kansas,  was 
arrested  for  sending  "obscene"  matter  through  the  mail,  which 
consisted  wholly  of  a  quotation  from  the  Bible.  In  the  United 
States  court,  after  a  contest,  he  was  found  guilty  and  fined. 
Just  keep  in  mind  a  moment  these  court  precedents  where 
portions  of  the  Bible  have  been  judicially  condemned  as  crim- 
inally "obscene,"  while  I  connect  it  with  another  rule  of  law. 
The  courts  have  often  decided  that  a  book  to  be  obscene  need 
not  be  obscene  throughout  the  whole  of  it,  but  if  the  book  is 
obscene  in  any  part  it  is  an  obscene  book  within  the  meaning 
of  the  statute.94 

You  see  at  once  that  under  the  present  laws,  and  relying 
wholly  on  precedents  already  established,  juries  of  irreligious 
men  could  wholly  suppress  the  circulation  of  the  Bible,  and 
in  some  states  the  laws  would  authorize  its  seizure  and  de- 
struction. We  also  have  the  decision  of  a  federal  court  seeming- 
ly of  the  opinion  that  the  Bible  is  "obscene,"  but  that,  not- 
withstanding this  fact,  a  successful  prosecution  thereon  is 
ridiculously  impossible.  The  decision  reads  thus: 

"As  a  result  [according  to  the  contention  of  the  defend- 
ant's counsel]  not  only  medical  works,  but  the  writings  of  such 
authors  as  Swift,  Pope,  Fielding,  Shakespeare,  and  many 
others,  even  the  Bible  itself,  would  be  denied  the  privileges 
of  the  United  States  mails.  Undoubtedly  there  are  parts  of 
the  writings  of  said  authors,  and  others  equally  noted,  which 
are  open  to  the  charge  of  obscenity  and  lewdness,  but  any 
one  objecting  to  such  works  being  carried  through  the  mails 
would  be  laughed  at  for  his  prudery."93  Italics  are  mine.  T.  S. 

But  if  "undoubtedly  there  are  parts"  of  the  Bible  "which 
are  open  to  the  charge  of  obscenity  and  lewdness,"  as  the 
judge  seems  to  admit,  and  as  John  Wise  and  another  found 
out  to  their  sorrow,  what  consolation  is  it  to  the  convicted 
man  that  his  persecutors  are  laughed  at  for  their  prudery, 

"(Here,  I  think,  Train  must  be  referring  to  the  conviction  of  John  A.  Lant 
publisher  of  the  Toledo  Sun.) 

"U.   S.   vs.   Bennett,  Blatchford,  388,  Fed.  Case,   14571. 
88 U.    S.    vs.   Harmon,   38  Fed.   Rep.    828. 

3IO 


VARIETIES  OF  OFFICIAL  MODESTY. 

while  he  pays  a  fine,  or  goes  to  prison  for  conduct  which  he 
could  not  know  to  be  a  crime  until  after  conviction? 

On  the  contrary  side  we  have  the  opinion  of  an  assistant 
attorney-general  that  the  Bible  is  not  "obscene"  in  any  of  its 
parts,  but  he  carefully  points  out  that  the  law  is  so  uncertain 
that  courts  might  take  a  different  view.  Under  date  of  Dec. 
4,  1891,  James  N.  Tyner  in  his  official  capacity  as  assistant 
attorney-general  of  the  United  States,  wrote  to  E.  Q.  Morton, 
Esq.,  of  Daphne,  Ala.,  as  follows : 

"The  law  is  made  up  of  two  clauses:  One  concerns  the 
mailability  of  obscene,  lewd,  lascivious,  or  indecent  publica- 
tions, and  this  is  determinable  by  the  postmaster-general. 
The  other  branch  of  the  law  provides  punishment  for  violating 
its  provisions,  and  this  is  enforceable  by  the  courts.  I  cannot 
therefore  properly  pass  upon  the  "liability"  in  any  case,  even 
if  it  were  submitted  in  proper  form  and  detail,  for  that  would 
be  an  attempted  usurpation  of  the  power  of  the  judicial  branch 
of  the  government ;  I  can,  however,  state  to  you  as  I  now  do, 
that  I  do  not  regard  the  Holy  Bible  as  a  whole,  or  any  part  of 
it  published  separately,  as  being  unmailable  within  the  meaning 
;>f  the  laws."  Italics  are  mine.  T.  S. 

Voltaire  informs  us,  on  the  authority  of  St.  Jerome,  that 
the  synagogue  did  not  permit  the  reading  of  Ezekiel  till  after 
the  thirteenth  year  of  age;  but  that  was  for  fear  their  youth 
should  make  a  bad  use  of  the  too  lively  description  in  the 
sixteenth  and  twenty-third  chapters,  of  the  whoredoms  of 
Aholah  and  Aholibah."95a 

Now  we  demand  to  know  whether  the  Bible  is  "obscene" 
in  any  of  its  parts,  and  where  is  the  statutory  test  which  deter- 
mines the  quesion? 

THE  TAYLOR  AND  LAWTON    CASES. 

In  Minnesota,  Miss  Rebecca  Taylor,  having  a  zeal  for 
reform,  encountered  the  interests  of  C.  B.  Gilbert,  superinten- 
dent of  the  St.  Paul  Schools.  As  a  part  of  her  work  of 
purifying  the  schools  she  thought  it  necessary  to  publish  in 
a  paper  edited  by  her  (Truth,  May  8th,  1897)  parts  of  certain 
affidavits  which  were  part  of  a  judicial  record,  reflecting  upon 
Mr.  Gilbert.  This  was  at  a  time  when  he  was  negotiating  for 
a  position  as  superintendent  of  the  Newark,  N.  J.  public 
schools,  the  intention  being  to  circulate  these  papers  in  Newark. 
Gilbert's  friends,  hearing  of  the  enterprise,  persuaded  the 

"^Treatise   on   Toleration,   p.    170,    Edition   of   London,    1764. 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

postal  authorities  of  St.  Paul  to  refuse  to  transmit  the  paper 
because  of  the  "obscenity"  of  these  affidavits.  Miss  Taylor 
had  the  matter  presented  to  the  authorities  at  Washington. 
The  Assistant  Attorney  General  for  the  Post-Office  Depart- 
ment rendered  a  lengthy  written  opinion  to  the  effect  that  the 
matter  was  not  "obscene"  and  the  paper  therefore  mailable. 
The  Assistant  Post  Master  General  accordingly  instructed  the 
St.  Paul  post-master  to  transmit  the  paper.  Thereafter  A.  W. 
Lawton,  editor  of  The  White  Bear  Breeze,  republished  from 
Truth  the  larger  part  of  the  same  affidavits. 

Notwithstanding  the  opinion  of  the  Washington  postal 
authorities,  the  United  States  Attorney  at  St.  Paul  secured  the 
indictment  of  both  editors  for  sending  these  "obscene"  affi- 
davits through  the  mail.  They  had  a  separate  trial.  In  neither 
case  was  there  any  question  about  the  publication  or  mailing, 
and  the  only  question  for  the  jury  was,  "Is  this  matter 
obscene?"  The  Taylor  jury  answered  "no"  and  Miss  Taylor 
was  acquitted.  The  Lawton  jury  answered  "yes"  and  Lawton 
was  found  guilty  and  punished. 

Again  it  is  self-evident  that  these  contradictory  verdicts 
were  not  derived  from  applying  any  statutory  criteria  of  guilt, 
but  from  the  total  absence  of  such  criteria,  and  a  mere  differ- 
ence of  whim  on  the  part  of  the  two  juries.  The  opinion  of 
the  Attorney  General's  office  was  offered  in  evidence,  and 
excluded  as  immaterial.  As  between  these  juries  and  the  U.  S. 
Attorney  General,  who  was  right?  Where  and  how  does  the 
statute  decide?  How  can  any  man  know  even  now  if  it  is  a 
crime  to  send  this  matter  through  the  mail?  If  the  Federal 
Statutes,  as  interpreted  and  applied  by  the  Attorney  General 
oi  the  United  States,  do  not  safeguard  against  prosecution,  even 
in  the  Federal  Courts,  then  how  can  we  have  such  a  thing  as 
"law"  or  "due  process  of  law"?  How  can  this  law  be  "the 
sanctuary  of  the  innocent"? 

''CUPID'S  YOKES/' 

Another  book,  the  history  of  which  strikingly  illustrates 
the  outrageous  uncertainty  of  the  laws  against  "obscene 
literature,"  is  one  entitled  Cupid's  Yokes;  or,  The  Binding 
Forces  of  Conjugal  Love.  An  Essay  to  Consider  Some  Moral 
and  Physiological  Phases  of  Love  and  Marriage,  Wherein 
is  Asserted  the  Natural  Right  and  Necessity  of  Sexual  Self- 
Covernment,  by  E.  H.  Hey  wood.  The  author  was  a  rather 


312 


VARIETIES  OF  OFFICIAL   MODESTY. 

conspicuous  co-laborer  of  such  abolitionists  as  Parker  and 
Garrison.  He  was  also  the  author  of  considerable  controver- 
sial literature  upon  other  subjects.  He  was  convicted  June 
25,  1878,  for  sending  his  pamphlet,  Cupid's  Yokes,  through 
the  mails,  and  sentenced  to  two  years  at  hard  labor.  At- 
torney-General Devens  did  not  consider  it  "obscene."  He 
wrote,  under  date  of  Jan.  13,  1879: 

"I  do  not  confound  it  with  those  obscene  publications, 
the  effect  and  object  of  which  is  to  excite  the  imagination  and 
inflame  the  passions/'98 

President  Hayes  in  December,  1878,  pardoned  Mr.  Heywood, 
— no  doubt  because  to  him  the  pamphlet  did  not  seem  obscene. 

Before  this,  D.  M.  Bennett  had  been  arrested,  under  the 
New  York  state  statute,  for  selling  Cupid's  Yokes,  and  the 
prosecution  had  been  dropped.  Just  before  the  pardon  of 
Heywood,  Bennett  was  again  arrested,  this  time  for  sending 
Cupid's  Yokes  through  the  mails.  He  was  convicted,97  and 
President  Hayes  again  signed  a  pardon — which,  however, 
was  not  issued,  because  of  some  representations  that  Bennett 
Tiad  also  been  guilty  of  adultery.98 

In  April,  1878,  Mrs.  Abbie  Dyke  Lee  was  tried  under  the 
Massachusetts  state  statute  against  selling  "obscene"  litera- 
ture, which  consisted  of  Cupid's  Yokes.  The  Jury  disagreed, 
the  case  was  thereupon  dismissed,  and  the  book  continued, 
without  molestation,  to  circulate  in  Massachusetts.  In  1882, 
Heywood  was  again  arrested  for  sending  Cupid's  Yokes 
through  the  mails.  Judge  Nelson,  after  hearing  the  pamphlet 
read,  said:  "The  court  is  robust  enough  to  stand  anything 
in  that  book,"  and  refused  to  admit  the  government's  plea  that 
it  was  too  "obscene"  to  spread  upon  the  records,  later  instruct- 
ing the  jury  to  acquit  on  the  first  two  counts  of  the  indictment, 
those  relating  to  Cupid's  Yokes  and  the  Word  Extra. 

Here,  then,  we  have  two  convinctions,  one  jury  disagree- 
ment and  consequent  dismissal,  one  instruction  to  acquit  be- 
cause the  book  was  not  "obscene,"  and  one  pardon  upon  the 
same  ground,  and  one  abandonment  of  prosecution.  There  was 
never  any  dispute  about  the  contents  or  meaning  of  the  book. 
The  uncertainty  is  therefore  wholly  in  the  law.  After  five 
.arrests — resulting  in  one  abandonment  of  prosecution,  two 

••See  Liberty  and  Purity,   p.   62. 

"See  U.  S.  vs.  Bennett,  Fed.  Case  No.  14571. 

MSee   Liberty   and   Purity,   p.    63. 

313 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

discharges  as  not  guilty,  two  convictions — the  opinions  of  the 
attorney  general  of  the  United  States  and  of  the 
United  States  circuit  court,  and  the  judicial  "constructions" 
of  the  statutes  against  "obscene"  literature  as  applied  to  this 
particular  book,  no  man  on  earth  can  tell,  even  now,  whether 
it  is  a  crime  to  send  Cupid's  Yokes  through  the  mail.  If  any 
one  claims  to  know  whether  the  law  condemns  this  book,  I 
ask  him  to  point  to  a  statutory  test  which  is  decisive. 

Even  if  in  every  case  Cupid's  Yokes  had  been  declared 
not  to  be  "obscene,"  still  this  would  be  no  protection  to  the 
next  vendor  of  the  book,  because  the  next  jury  might 
reach  a  different  conclusion  as  to  what  the  law  prohibited. 
Indeed,  the  courts  might,  as  courts  have  done,  instruct  the 
jury  to  disregard  a  precedent  of  acquittal  by  another  court 
deciding  that  the  same  matter  was  not  "obscene."  This  I 
understand  to  be  the  effect  of  all  tests  of  obscenity,  and  also 
of  the  following  charge  from  Judge  Butler,  Eastern  District 
of  Pennsylvania,  as  unofficially  published  by  Mr.  Comstock 
from  the  official  stenographer's  report.  The  judge  charged: 
"It  is  wholly  unimportant  what  may  have  occurred  elsewhere 
in  the  consideration  of  this  question,  if  it  ever  has  been  con- 
sidered ;  you  have  nothing  to  do  with  it  at  this  time."100 

Prof.  Andrew  D.  White  tells  us  that:  "At  a  time  when 
eminent  prelates  of  the  Older  Church  were  eulogizing  de- 
bauched princes  like  Louis  XV  and  using  the  unspeakably 
obscene  casuistry  of  the  Jesuit  Sanchez  in  the  education  of  the 
priesthood  as  to  relations  of  men  and  women,  the  modesty  of 
the  church  authorities  was  so  shocked  by  Linnaeus'  proof 
of  a  sexual  system  in  plants,  that  for  many  years  his  writings 
were  prohibited  in  the  Papal  States  and  in  various  parts  of 
Europe  where  clerical  authority  was  strong  enough  to  resist 
the  new  scientific  current."101 

Now,  one  may  with  impunity  discuss  the  sexuality  of 
plants,  but  a  publication  of  the  writing  of  Sanchez  and  others 
like  him  has  landed  good  men  in  jail,  though  it  was  done  for 
the  best  of  motives.102 

The  foregoing  record  illustrates  and  demonstrates  the 
baneful  uncertainty  and  conflicting  results  coming  from  an 
exercise  of  arbitrary  judicial  power  in  determining  innocence 
under  a  penal  statute  which  fails  to  furnish  criteria  of  guilt. 

100C7.    S.   vs.   Sherman:    See  Morals,  Not  Art  or  Literature,   p.    33. 
imHist.   of  the   Warfare  of  Science  and   Theology,   v.    1,   p.   60. 
102Queen  vs.  Hicklin  L.  R.  3  Q.  B.  369,— U.  S.  vs.  Price,  165  U.  S.  811. 


VARIETIES  OF  OFFICIAL  MODESTY. 

Tests  of  obscenity  were  never  deduced  from  the  statutes,  but 
read  into  them.  The  decisions  express  only  ex  post  facto 
legislative  judgments  as  to  what  was  believed  ought  to  be  the 
result  as  applied  to  the  facts  of  each  given  case.  The  un- 
certain statutes  furnish  the  pretext,  and  the  judicial  legislation 
creating  equally  uncertain  "tests"  of  obscenity  furnishes  the 
unconstitutional  means  by  which  the  emotionally  demanded 
result  is  attained  and  "justified."  These  miscalled  "tests"  are 
the  mere  empty  verbalisms  by  which  judges  attempt  to 
objectivize  their  emotional  pre-disposition,  and  they  are  con- 
sidered cogent  only  because  responding  to  the  prior  feeling- 
conviction  which  called  them  into  being.  The  "tests  of 
obscenity"  are  seldom  the  real  reason  for  the  decision,  but 
are  a  misleading  consequence  of  it.  Our  emotions,  and  the 
public  demand  that  something  be  done,  produce  that  uncon- 
scious shamming,  to  consumate  which  meretricious  and 
factious  "tests  of  obscenity"  are  judicially  and  unconstitution- 
ally created  and  interpolated  into  the  statute. 

A   PSYCHOLOGIC   STUDY   OF    MODESTY.   " 

What  then  is  the  nature  of  modesty  which  is  now  seen 
to  manifest  itself  in  such  illimitable  and  ever  changing 
variety?  What  is  the  relation  of  that  essential  nature  of 
modesty  to  the  practical  problem  of  determining  the  existence 
of  "obscenity"  in  literature  and  art  by  the  test  of  shocking 
modesty?  What  is  the  moral  value  of  a  shock  to  modesty,  as 
a  means  of  determining  the  existence  of  "obscenity"?  These 
matters  will  now  be  discussed.  After  this  will  come  a  demon- 
stration of  the  uncertainty  of  the  "moral"  test  of  obscenity, 
and  this  in  turn  will  be  followed  by  a  discussion  of  the  legal 
consequences  wliich  must  flow  from  this  wholly  indeterminable 
nature  of  the  "obscene"  and  the  consequent  total  absence, 
either  in  the  statute  or  the  unconstitutional  judicial  legislation 
under  it,  of  anything  like  uniform!  criteria  of  guilt. 

The  Rev.  Dr.  Stoddard  has  told  us  that  "All  visible  signs 
are  common  to  converted  and  unconverted  men,  and  a  relation 
of  experience  among  the  rest."  To  this  the  Rev.  Jonathan 
Edwards  adds :  "No  external  manifestations  and  outward  ap- 
pearances whatsoever  that  are  visible  to  the  world  are  infal- 
lible evidence  of  grace." 

losRepublished  from  The  Medical  Council,  Jan.,  1909. 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

What  is  thus  true  of  religion  is  equally  true  of  modesty. 
No  external  manifestation  or  outward  behavior,  nor  the  habit- 
ual presence  of  clothing  or  its  absence,  nor  the  verbal  relation 
of  experience,  nor  crimson  blushes  are  unmistakable  criteria 
of  a  commendable  (that  is,  healthy  minded)  modesty,  and  all 
are  consistent  with  the  highest  degree  of  nasty  mindedness. 
The  true  modesty  of  healthy  mindedness  is  but  a  mental  atti- 
tude, which  in  the  presence  of  healthy  nature  always  maintains 
an  imperturbable  poise,  akin  to  the  inward  grace  of  the  religion- 
ist, and  which  can  not  be  infallibly  inferred  from  appearances 
or  conduct.  Like  health  in  any  other  particular,  it  eludes 
exact  definition,  because  it  fades  so  gradually  into  its  opposite 
of  disease  that  none  can  tell  precisely  where  one  ends  and  the 
other  begins. 

We  can  not  assume  that  all  have  the  desirable  healthy 
modesty  who  claim  it  or  who  can  blush.  We  may,  however, 
analyze  the  symptoms  and  trace  them  to  their  source,  and  so 
we  can,  at  least  in  an  abstract  way,  determine  the  criteria  of 
the  modesty  of  a  healthy-minded,  physically  perfect  man. 

The  first  form  of  spurious  modesty  I  shall  designate  as 
the  modesty  of  unconscious  and  uncoerced  sympathetic  imita- 
tion. This,  perhaps,  is  oftenest  found  in  the  (simulated) 
modesty  of  children,  and  not  infrequently  in  adults.  If  you 
should  ask  them  why  they  denounce  certain  acts  as  immodest 
they  could  give  no  reply  except  that  "they  say'*  it  is  so.  In 
this  form  there  is  no  emotional  aversion  nor  any  fear  of  the 
judgment  of  others.  It  is  the  simplest  form  of  imitation, 
unconsciously  enacted  and  because  not  so  fixedly  habitual 
as  to  be  involved  with  the  emotional  life,  therefore  it  does 
not  yet  induce  objective  moral  valuations  and  is  not  really 
esteemed  a  virtue.  Here  there  may  be  a  most  perfect  healthi- 
ness of  mind,  which,  however,  for  the  want  of  a  definite  ap- 
preciation of  the  factors  and  evidence  of  its  health,  and  a 
consequent  ignorance  and  absence  of  all  consciousness  of 
definite  standards  of  healthy  mindedness  in  relation  to  sex  or 
modesty,  is  non-assertive  and  may  be  led  to  imitate  the  verb- 
ally expressed  sex-overvaluation  of  the  most  unhealthy  sen- 
sualists, of  either  repression  or  indulgence. 

When  this  modesty  of  an  unconscious,  ignorant,  sympa- 
thetic imitation  becomes  habitual  and  evolves  to  self-conscious- 
ness, and  acquires  associated  emotions,  with  all  the  other  fac- 


VARIETIES  OF  OFFICIAL   MODESTY. 

tors  unchanged,  it  becomes  the  conscious  modesty  of  imitation 
through  cowardice.  This,  perhaps,  is  the  most  general  and 
popular  kind  of  modesty  among  adults,  and  is  about  the  only 
kind  of  modesty  that  has  received  scientific  study,  and  has 
often  been  generalized  as  being  all  that  there  is  of  modesty. 

An  idea  related  to  sex,  the  harboring  of  which  would  in- 
voke adverse  criticism,  may  and  usually  does  produce  an  emo- 
tional fear,  which  is  readily  transfused  into  an  emotional  ap- 
proval of  an  opposing  idea,  and  this  emotional  approval  is 
quite  apt  to  have  its  intensity  determined  by  the  degree  of 
fear-emotion,  which  it  really  is,  and  the  degree  of  the  indivi- 
dual's sexual  hyperaestheticism. 

Let  us  now  quote  the  statements  of  intelligent  observers 
as  to  this  form  of  modesty,  which  is  a  mere  imitation  through 
fear.  In  the  seventeenth  century  I  find  the  scholarly  Peter 
Bayle  making  this  observation  as  to  modesty:  "An  honest 
woman  will  justly  be  offended  if  any  one  tells  her  an  obscene 
story ;  but  she  will  not  blame  an  historian  for  relating  it,  pro- 
vided he  abstain  from  filthy  words.  An  historian  speaks  to 
the  public,  and  not  to  such  and  such  a  woman  in  particular, 
and  therefore  what  he  says  is  not  offensive,  as  it  would  be 
if  it  was  said  in  a  conversation  or  in  a  letter.  In  these  two 
last  cases  he  would  have  no  very  favorable  notion  of  the 
modesty  of  those  to  whom  he  speaks  or  writes,  and  that  it  is 
that  gives  offense."104. 

In  this  analysis  it  is  clear  that  such  modesty  consists  only 
in  a  fear  of  the  judgment  of  those  who  know  that  she  suffers 
in  her  presence  the  telling  of  that  which  those  others  esteem 
"obscene."  The  "obscenity"  disappears — that  is,  the  offense 
is  non-existent — when  the  fear  of  that  judgment  is  non-exis- 
tent, either  ideally  or  actually. 

When  some  dominant  character,  through  fear  of  him  or 
her,  has  forced  generally  upon  any  community  some  particular 
standard  of  "modesty,"  we  have  the  condition  described  by 
Dr.  Havelock  Ellis  in  these  words :  "Modesty  thus  comes  to 
have  the  force  of  tradition,  a  vague  but  massive  force,  bearing 
with  special  power  on  those  who  can  not  reason."105 

It  seems  to  me  that  the  following  quotation  is  pregnant 
with  the  same  suggestion  that  a  healthy  natural  woman  is  not 
ashamed  to  discuss  sex  or  see  sex  in  the  presence  of  men,  un- 

™*Historical  and  Critical  Diet.,  Vol.  V,  page  133,  Edition  of  Lond.,  A.  D. 
1738. 

wtStudies  in  the  Psychology   of  Sex,  page   43. 
317 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

less  first  reminded  that  she  is  a  woman  and  that  therefore 
she  must  fear  adverse  judgment  unless  she  acts  differently 
than  she  would  do  if  unafraid  or  if  she  were  a  man. 

"I  have  conversed,  as  man  with  man,  with  medical  men 
on  anatomical  subjects  and  compared  the  proportions  of  the 
human  body  with  artists,  yet  such  modesty  did  I  meet  with 
that  I  was  never  reminded  by  word  or  look  of  my  sex,  of  the 
absurd  rules  which  make  modesty  a  pharisaical  cloak  of  weak- 
ness. And  I  am  persuaded  that  in  the  pursuit  of  knowledge 
women  would  never  be  insulted  by  sensible  men  and  rarely 
by  men  of  any  description  if  they  did  not  by  mock  modesty 
remind  them  that  they  were  women;  actuated  by  the  same 
spirit  as  the  Portuguese  ladies,  who  would  think  their  charms 
insulted  if,  when  left  alone  with  a  man,  he  did  not  at  least 
attempt  to  be  grossly  familiar  with  their  persons.  Men  are 
not  always  men  in  the  company  of  women;  nor  would  women 
always  remember  that  they  are  women  if  they  were  allowed 
to  acquire  more  understanding/'106 

The  same  thought  that  fear  of  the  judgments  of  others 
is  the  essence  of  modesty  comes  from  another  woman.  Mad- 
ame Celine  Renooz,  in  a  recent  "elaborate  study  of  the  psy- 
chological differences  between  men  and  women,"  says :  "Mod- 
esty is  masculine  shame  attributed  to  women  for  two  reasons : 
First,  because  man  believes  that  woman  is  subject  to  the  same 
laws  as  himself;  second,  because  the  course  of  human  evo- 
lution has  reversed  the  psychology  of  the  sexes,  attributing  to 
women  the  psychological  results  of  masculine  sexuality.  This 
is  the  origin  of  the  conventional  lies  which  by  a  sort  of  social 
suggestion  have  intimidated  women.  They  have  in  appearance 
at  least  accepted  the  rule  of  shame  imposed  on  them  by  men, 
but  only  custom  inspires  modesty  for  which  they  are  praised. 
It  is  really  an  outrage  to  their  sex/'107 

In  support  of  her  views  the  authoress  points  out  that  the 
decolette  constantly  reappears  in  feminine  clothing,  never  in 
that  of  the  male ;  that  missionaries  experience  great  difficulty 
in  persuading  uncivilized  women  to  cover  themselves ;  that 
while  women  accept  with  facility  an  examination  by  male 
doctors,  men  cannot  force  themselves  to  accept  examination 
by  a  woman  doctor,  etc.,  etc.108 

Professor  James  of  Harvard  is  more  specific  in  his  state- 

106W<4lstonecraft,   "Vindication  of  the  Rights  of  Women,"  page   132. 
101 Psychologic   Comparre  de  Homme  et  de  la  Femme,   pages   85-87,   requoted 
from   Ellis's  Psychology   of  Sex   (Modesty),  page   4. 

108Ellis's  Psychology  of  Sex   (Modesty),  page  5. 


VARIETIES  OF  OFFICIAL  MODESTY. 

ment  when  he  informs  us  that  modesty  is  "The  application 
in  the  second  instance  to  ourselves  of  judgments  primarily 
passed  upon  our  mates."109 

Ribot  concurs  in  these  words:  "I  look  upon  it  [modesty] 
as  a  binary  compound  capable  of  being  resolved  into  two  pri- 
mary emotions — self -feeling  and  fear.  The  emotional  state 
which  lies  at  the  root  of  modesty,  shame  and  other  similar 
manifestations  arises  from  the  application  in  the  second  in- 
stance to  ourselves  of  a  judgment  primarily  passed  upon 
others.  *  *  *  Modesty  can  not  be  considered  an  instinct 
in  the  strict  sense  of  the  word,  i.  e.,  as  an  excitomotor  phenom- 
enon. Under  the  influence  of  custom,  public  opinion,  civili- 
zation it  passes  through  its  evolution  till  it  reaches  the  New 
England  pitch  of  sensitiveness  and  range,  making  us  say  stom- 
ach instead  of  belly,  limb  instead  of  leg  [even  limbs  of  a 
piano],  retire  instead  of  go  to  bed,  and  forbidding  us  to  call 
a  female  dog  by  name."110 

In  practically  every  discussion  of  modesty  the  same  con- 
clusion is  implied,  even  when  not  expressed.  I  will  quote 
a  few  illustrative  statements :  "But  here  we  come  round  to  the 
altruistic  and  moral  emotions,  for  shame  is  present  only  where 
the  individual  has  a  desire  to  please  and  is  pained  at  the  dis- 
approval of  others."™ 

Darwin  expresses  his  belief  "that  self-attention  directed 
to  personal  appearance  in  relation  to  the  opinion  of  others" 
and  <(not  moral  conduct,"  is  the  fundamental  element  in  shy- 
ness, modesty,  shame  and  blushing.112 

Professor  Thomas,  of  the  Chicago  University,  expresses 
himself  thus :  "Now,  taking  them  as  we  find  them,  we  know 
that  such  emotions  as  modesty  and  shame  are  associated  with 
actions  which  injure  and  shock  others  and  show  us  off  in  a  bad 
light.  *  *  *  When  once  a  habit  is  fixed  interference 
with  its  smooth  running  causes  an  emotion.  The  nature  of 
the  habit  broken  is  of  no  importance.  //  it  were  habitual  for 
grandes  dames  to  go  barefoot  on  our  boulevards,  or  to  wear 
sleeveless  dresses  at  high  noon,  the  contrary  would  be  embar- 
rassing. . 

"Our  understanding  of  the  nature  of  modesty  is  here 
further  assisted  by  the  consideration  that  the  same  stimulus 

^Principles   of  Psychology,   Vol.   II,   page   435. 

"^Psychology   of  the  Emotions,    pages   273-275. 

mWilliams's  Evolutional   Ethics,    439. 

^Expressions  of  Emotion  in  Man  and  Animals,  pages  325-327. 

319 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

does  not  produce  the  same  reaction  under  all  circumstances^ 
but,  on  the  contrary,  may  result  in  totally  contrary  effects. 
.  .  .  Similarly,  modesty  has  a  two-fold  meaning  in  sexual 
life.  In  appearance  it  is  an  avoidance  of  sexual  attention,  and 
in  many  moments  it  is  avoidance  in  fact.  But  we  have  seen 
in  the  case  of  the  bird  that  the  avoidance  is  at  the  pairing 
season  only  a  part  of  the  process  of  working  up  the  organism 
to  the  nervous  pitch  necessary  for  pairing."  [No  doubt  it  is 
this  same  thought  as  applied  to  man,  which,  in  about  1751, 
induced  Helvetius  to  say:  "Modesty  is  only  the  invention  of 
a  refined  voluptuousness."] 

"Modesty  with  reference  to  personal  habits  has  become 
so  ingrained  and  habitual,  and  to  do  anything  freely  is  so 
foreign  to  woman,  that  even  freedom  of  thought  is  almost  in 
the  nature  of  immodesty  in  her."" 

Dr.  Havelock  Ellis,  probably  the  world's  most  famous 
specialist  in  sexual  psychology,  has  this  to  say :  "That  modesty 
— like  all  the  closely  allied  emotions — is  based  on  fear,  one 
of  the  most  primitive  of  the  emotions,  seems  to  be  fairly 
evident."114 

"IMMODESTY"  NO  PROVOCATIVE. 

Among  uneducated  people,  the  test  of  shock  to  modesty 
is  esteemed  of  importance  because,  being  founded  on  their 
feelings,  they  confound  the  moral  valuation  of  circulating 
a  disagreeable  idea,  with  the  moral  sentimentalism  associated 
with  the  accused  presentation.  This  makes  it  desirable  to 
make  a  little  inquiry  into  the  relation  of  modesty  and  sensual- 
ism. The  more  precise  question  of  standards  of  morals  will 
be  left  for  a  later  discussion.  Here  it  will  suffice  to  show 
that  thoughtful  men  dispute  the  mob's  opinion  that  nudity  is 
usually  provocative  of  lust. 

The  poets,  more  than  most  other  people,  meditate  upon 
love  and  the  associated  subjects.  It  is  not  surprising,  there- 
fore, to  find  that  some  of  these  should  have  hit  upon  the  same 
thought.  Here  is  a  sample: 

"The  maid,  who  modestly  conceals 
Her  beauties,  while  she  hides,  reveals. 
Give  but  a  glimpse,  and  fancy  draws 
Whate'er  the  Grecian  Venus  was. 
From  Eve's  first-fig-leaf  to  brocade, 

"'Fables  for  the  Female  Sex  (3rd  Edition,  1766)   pp.   66-65. 
"'Studies  in  the  Psychology  of  Sex  (Modesty),  pp.  1-27. 

320 


VARIETIES  OF  OFFICIAL   MODESTY. 

All  dress  was  meant  for  fancy's  aid, 
Which  evermore  delighted  dwells 
On  what  the  bashful  nymph  conceals. 
Whenever  Celia  struts  in  man's  attire, 
She  shows  too  much  to  raise  desire; 
But  from  hoop's  bewitching  round, 
Her  very  shoe  has  power  to  wound. 
The  roving  eye,  the  bosom  bare, 
The  forward  laugh,  the  wanton  air, 
May  catch  the  fop,  for  gudgeons  strike 
At  the  bare  hook,  and  bait,  alike ; 
While  salmon  play  regardless  by, 

Till   art,   like  nature,   forms  the  fly. 
******* 

To  wiser  heads  attention  lend, 

And  learn  this  lesson  from  a  friend. 

She  who  with  modesty  retires, 

Adds  fuel  to  her  lover's  fires, 

While  such  incautious  jilts  as  you, 

By  folly  your  own  schemes  undo."" 

Burton  (Anatomy  of  Melancholy,  Part  III,  Sec.  2,  Sub.  3, 
is  quoted  by  Ellis,  Modesty,  page  39)  as  writing  that  "The 
greatest  provocations  to  lust  are  our  clothing."  Burton  further 
says:  "Some  are  of  the  opinion  that  to  see  a  women  naked 
is  able  of  itself  to  alter  his  affection,  and  it  is  worthy  of  con- 
sideration, saith  Montaigne,  the  Frenchman,  in  his  essays,  that 
the  skillfullest  master  of  amorous  dalliance  appoints  for  a 
remedy  of  venerous  passions  a  full  survey  of  the  body ;  which 
the  poet  insinuates: 

The  love  stood  still  that  ran  in  full  careire, 
When  once  it  saw  those  parts  should  not  appear."" 
If,  as  all  the  scientists  seem  agreed,  modesty  is  but  "the 
application  in  the  second  instance  to  ourselves  of  judgments 
primarily  passed  upon  others,"  then  we  have  ready  explana- 
tion why,  though  there  are  no  definite  criteria  of  guilt,  the 
verdict  is  quite  uniformly  "guilty."  The  defendant  is  de- 
nounced by  the  prosecuting  attorney,  and  the  widely  adver- 
tised morality  of  "vice-societies."  This  avalanche  of  right- 
eous vituperation  is  often  reinforced  by  an  impassioned  stump 
speech  from  a  popularity-seeking  judge,  who  abuses  the  op- 

U6Fables  for  the  Female  Sex  (3rd  Edition,   1766),  pp.  66-65. 
"'Burton's  Anatomy  of  Melancholy,  Vol.  II,  page  371. 

321 


OBSCENE    LITERATURE    AND   CONSTITUTIONAL   LAW. 

portunity  given  him  to  instruct  the  jury.  Thus  the  jury  is  in- 
formed how  contemptible  they  will  be  in  the  eyes  of  these  ex- 
emplars of  "virtue"  should  they  disagree  with  them  as  to  the 
"obscenity"  of  the  book  under  investigation.  Neither  the  stat- 
ute nor  his  own  knowledge  of  the  psychology  of  modesty, 
furnish  him  with  any  criteria  of  obscenity;  the  juror,  there- 
fore, is  wholly  without  the  instruments  by  which  to  fortify 
himself  against  the  terrible  charges  that  are  already  laid  at 
his  door  should  he  find  the  accused  publication  to  be  unobscene. 
Thus  from  the  sheer  absence  of  any  other  standard  of  judg- 
ment he  renders  a  verdict  of  guilty,  solely  to  insure  the  esteem 
of  the  prosecutors.  This  is  the  inevitable  result  of  the  ab- 
sence of  statutory  criteria  of  guilt,  and  of  submitting  to  the 
jury's  modesty  the  question  of  what  shall  constitute  the  essence 
of  guilt. 

That  there  is  no  such  uniform  and  necessary  connection 
between  "immodesty"  and  sexual  "immorality"  as  is  popularly 
supposed  and  judicially  assumed,  is  further  testified  to  by 
other  scholars. 

Dr.  R.  W.  Felkin  remarks  concerning  Central  Africa, 
that  he  nowhere  met  with  more  indecency  than  in  Ugabda, 
where  the  death  penalty  is  inflicted  on  an  adult  found  naked 
in  the  streets.  To  this  we  may  add  the  testimony  of  H. 
Crawford  Angus,  who  has  spent  many  years  in  Azimba  land, 
Central  Africa.  He  writes:  "It  has  been  my  experience  that 
the  more  naked  the  people,  and  the  more,  to  us,  obscene  and 
shameless  their  manners  and  customs,  the  more  moral  and 
strict  they  are  in  the  matter  of  sexual  intercourse."" 

Among  the  Druses,  where  incest  is  practised,  divorce 
is  easy  and  the  elect,  or  spiritualists,  have  most  licentious 
and  sacred  debaucheries,  the  women  yet  wear  veils  and  their 
faces  are  unseen  except  by  immediate  relatives.118 

"There  is  a  great  truth  underlying  the  fact  which  the 
Governor  of  Uganda  has  just  proclaimed,  namely,  that  the 
more  clothes  the  Bakedi  women  wear  the  less  moral  they  are. 
Among  all  the  unclothed  Nilotic  tribes,  he  says,  a  notable 
degree  of  morality  exists;  whereas  those  who  have  always 
been  addicted  to  wearing  apparel  are  of  notoriously  lax  habits. 
It  is  the  same  everywhere."119 

11TBurton's  Anatomy   of  Melancholy,   Vol.   II,   page   371. 
™"  Woman,"   by   Talmey,   pases   10,   11. 

Mall  Gazette,  now  requoted  from  Truth  Seeker,  May  8,  1909. 

322 


VARIETIES  OF  OFFICIAL   MODESTY. 

These  testimonies  demonstrate  quite  conclusively  that 
there  is  no  necessary  connection  between  "immodesty"  and 
sexual  orthodoxy,  and  that  with  those  in  whom  a  healthy- 
minded  naturalness  has  not  been  tainted  by  a  prurient  prudery, 
the  absence  of  clothing  does  not  usually  operate  as  a  pro- 
vocative to  lust,  and  thus  we  see  that  the  passions  are  best 
stimulated  by  concealment  and  mystery. 

It  follows  quite  logically  from  what  has  preceded  that 
those  who  have  become  dominated  by  the  idea  that  the  sex 
impulse  is  a  deplorable  passion,  and  therefore  a  condition  to 
be  ashamed  of,  will  manifest  shame  proportionate  to  the 
intensity  of  their  own  sex-sensitiveness,  that  they  so  intensely 
desire  to  conceal.  This  sexual  hyperestheticism  is  more  than 
the  foundation  of  modesty  and  the  determinant  of  the  quality 
and  quantity  of  its  resultant  shame.  This  same  sensitiveness 
to  suggestion  is  also  the  foundation  of  psycho-sexual  impo- 
tency.  Thus  it  comes  that  excessive  lewdness  very  often  in- 
duces excessive  modesty  and  shame,  and  these  in  turn,  by  the 
very  fact  of  their  abnormal  intensity  and  the  resultant  ab- 
normally intense  fear,  produce  a  psychic  inhibition  against  the 
natural  physiological  consequences  of  an  otherwise  appro- 
priate objective  sex-stimulus. 

When  this  modesty,  of  diseased  nerves,  and  a  consequent 
abnormal  lasciviousness,  have  produced  psychic  immunity  to 
a  normal  sex-stimulation,  their  victims  often  are  credited,  by 
themselves  and  by  others,  with  being  unusually  "virtuous." 
This  erroneous  conclusion  involves  two  false  assumptions. 
The  first  of  these  is  the  implication  that  incapacity  for  normal 
and  healthy  activity  of  any  bodily  organ  can  by  any  possibility 
be  credited  with  moral  value ;  the  other  false  assumption  is 
that  mere  psychic  impotence  as  to  normal  sex-functioning  im- 
plies general  indifference  to  sex,  for  nothing  can  be  farther 
from  the  facts  as  they  are  known  to  sexual  psychologists. 
Practically  all  sex-perverts  are  hyperesthetic,  and  probably  a 
majority  of  them  are  indifferent  to  or  impotent  as  regards 
normal  indulgence.  The  prude  who,  through  fear,  has  be- 
come psychically  unresponsive  to  what  otherwise  would  be  an 
effective  sex-stimulus,  has  not  been  deprived  of  even  the  least 
quantity  of  the  subjective  conditions  of  excessive  lascivious- 
ness,  either  psychological  or  physiological.  Since  a  psychic 
inhibition  against  some  particular  manifestation  of  the  sex- 


323 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

impulse  does  not  at  all  imply  any  decrease  in  the  imperative- 
ness of  the  impulse  itself,  it  would  seem  to  follow  that 
wherever  excessive  modesty  imposes  a  continuing  inhibition 
against  normal  sexuality  it  is  almost  certain  to  promote  and 
be  the  accompaniment  of  the  perversion  of  the  sex  impulse. 
All  writers  upon  sexual  psychopathy  have  given  us  abund- 
ant examples  to  show  the  concurrence  of  excessive  modesty 
and  perverted  sexuality. 

I  think  we  may  consider  it  an  established  fact  that  the 
most  prevalent  kind  of  modesty  is  but  a  manifestation  of  con- 
scious cowardice,  quailing  in  fear  of  the  anticipated  adverse 
judgment  of  those  whose  favorable  opinion  is  most  valued. 
Also  that  in  its  more  acute  manifestations  modesty  and  shame 
will  be  intense  just  to  the  degree  that  the  sexual  hyperesthetic- 
ism  (lewdness)  is  excessive.  So  it  comes  to  this,  that  all 
genuine  modesty  and  prudery  are  founded  on  excessive  sen- 
suality, and  all  mere  seeming  modesty  and  prudery  are  the  un- 
reasoned and  fear-induced  imitation  of  the  former. 

Furthermore,  if  this  theory  is  correct  we  should  expect 
that  the  most  vehement  denial  of  it  must  come  from  the  very 
persons  who  feel  that  by  our  analysis  we  have  uncovered  the 
very  thing  in  themselves  which  they  are  most  anxious  to  con- 
ceal. As  further  evidence  of  the  correctness  of  our  theory  it 
will,  no  doubt,  appear  that  those  who  are  most  vehement  in 
their  protestations  against  it,  because  their  weakness  has  been 
discovered,  will  not  base  their  denials  upon  any  psychologic 
study  of  modesty  objectively  considered.  In  other  words, 
their  denial  will  rest  wholly  upon  subjective  authority — that  is, 
upon  their  personal  and  emotional  desire  that  others  shall 
not  believe  the  theory  true,  at  least  as  to  themselves. 

"They  [prudes]  do  not  recognize  that  normal,  well- 
ordered  amativeness  is  a  physiological  and  moral  virtue,  while 
manifestations  of  spurious  spirituality  are  often  induced  by 
some  perversion.  Indifference  to  amatory  pleasures  is  fre- 
quently professed  by  those  who  resort  to  artificial  stimulants. 
Prudery  only  betrays  impurity.  Prudery  is  the  affectation  of 
innocence,  and  consequently  implies  guilt.  To  the  really  inno- 
cent and  pure  all  things  are  pure.  Only  the  immoral  or  those 
most  occupied  with  amatory  delights  feign  to  look  with  con- 
tempt upon  the  generative  organs  and  to  despise  their  won- 
derful functions. 

"Yet  the  prudery  and  obscenity  of  such  as  these  have  sue- 

324 


VARIETIES  OF  OFFICIAL   MODESTY. 

•ceeded  in  distorting  our  judgment  on  questions  of  sex  in  such 
a  way  that  any  desire  for  scientific  instruction  in  these  sub- 
jects has  become  inextricably  confused  with  ideas  of  prurience 
or  impropriety.  Matters  pertaining  to  the  generative  func- 
tions and  to  the  sexes,  which  were  formerly  discussed  with 
perfect  familiarity  and  directness,  with  no  thought  of  impro- 
priety and  immodesty,  as  every  reader  of  the  Bible  or  other 
ancient  classics  well  knows,  are  now  excluded  even  from 
treatises  on  physiology  or  gynecology.  But  for  the  anato- 
mists and  alienists  nothing  would  be  known  about  the  physiol- 
ogy of  normal  love.  The  zealots  wish  to  persuade  us  that  the 
population  of  the  earth  increases  by  the  stork  method.  These 
victims  of  a  diseased  imagination  and  perverted  moral  sense 
have  succeeded  in  creating  a  false  modesty  which  hinders  free 
discussion."" 

Thus  far  we  have  considered  perverted  sexuality  only  as 
an  associate  and  as  a  consequence  or  cause  of  prurient  prudery. 
We  have  not  yet  arrived  at  the  origin  of  prudery  and  modesty 
when  racially  considered.  By  the  way,  it  is  worthy  of  remark 
that  prudery  and  modesty  are  not  in  the  least  distinguishable 
except  that  as  an  epithet  prudery  is  applied  to  those  particu- 
lar manifestations  of  modesty  which  come  only  from  others 
and  which  we  do  not  happen  to  like. 

The  question  still  remains,  How  came  the  first  prude  into 
existence?  What  manner  of  man  first  inspired  that  unnatural 
shame  for  healthy—minded  sensualism  by  making  others  afraid 
of  his  criticism,  should  they  admit  by  word  and  act  their  own 
healthy  naturalness?  Here  I  cannot  take  up  this  question, 
except  to  hint  my  conclusion  that,  phylogenetically,  human 
modesty,  as  we  now  understand  it,  had  its  principal  sources  in 
sexual  hyperestheticism  and  a  perverted  sex-impulse,  and  its 
secondary  source  in  clothing,  religious  customs,  etc.  But  that 
must  be  left  for  another  discussion. 

The  foregoing  considerations,  it  is  believed,  demonstrate 
that  modesty  is  but  the  fear-imposed  judgment  of  others,  and 
in  itself  is  devoid  of  moral  value  and  from  its  very  nature  is 
incapable  of  furnishing  anything  like  a  uniform  or  certain 
criterion  of  "obscenity"  such  as  is  essential  to  the  validity  of 
the  statute  in  question. 

™"  Woman,"  by  Talmey,  pages  10,  11. 


325 


CHAPTER  XVII. 

i 

VARIETIES  OF  CRITERIA  OF  GUILT. 

Our  study  of  psychology,  ethnography,  and  juridical 
history,  in  relation  to  modesty,  has  revealed  the  fact  that  the 
statutory  words  "obscene  and  indecent,"  etc.,  do  not  in  and 
of  themselves  furnish  either  uniform,  or  any,  criteria  of 
guilt,  such  as  should  enable  every  man  of  ordinary  under- 
standing, under  all  circumstances,  to  know  with  certainty 
whether  or  not  his  proposed  conduct  is  penalized,  and  without 
which  certainty  in  the  criteria  of  guilt  no  penal  statute  can 
be  "due  process  of  law." 

It  remains  to  inquire  how  far  the  unconstitutional  judicial 
legislation  in  the  creation  of  criteria  of  guilt  has  supplied  the 
necessary  certainty  in  the  tests  of  obscenity.  That  this  is  not 
accomplished  is  the  opinion  of  hundreds  who  have  been  con- 
victed for  a  mere  difference  of  opinion  with  the  censors,  as 
it  seemed  to  them,  and  some  of  these  have  left  valuable 
and  intelligent  protests.  But  these  are  not  alone. 

At  the  National  Liberal  League's  convention  held  in 
Philadelphia  July  1st  to  4th,  1876,  the  following  resolution 
was  adopted: 

"Resolved,  That  this  League,  while  it  recognizes  the  great 
importance  and  the  absolute  necessity  of  guarding  by  proper 
legislation  against  obscene  and  indecent  publications,  what- 
ever sect,  party,  order,  or  class  such  publications  claim  to 
favor,  disapproves  and  protests  against  all  laws  which,  by 
reason  of  indefiniteness  or  ambiguity,  shall  permit  the  prosecu- 
tion and  punishment  of  honest  and  conscientious  men  for 
presenting  to  the  public  what  they  deem  essential  to  the  public 
welfare,  when  the  views  thus  presented  do  not  violate  in 
thought  or  language  the  acknowledged  rules  of  decency; 
and  that  we  demand  that  all  laws  against  obscenity  and 
indecency  shall  be  so  clear  .and  explicit  that  none  but  actual 
offenders  against  principles  of  purity  shall  be  liable  to  suffer 
therefrom."1 

iComstock's    Frauds    Exposed,    page    446. 

326 


VARIETIES  OF  CRITERIA  OF  GUILT. 

The  annual  meeting  of  the  National  Purity  Federation, 
Oct.  11,  1906,  unanimously  adopted  a  resolution  praying  for 
relief  from  the  evils  of  this  uncertainty.  From  the  preamble 
of  this  resolution  I  quote  the  following:  "In  view,  however, 
of  the  fact  that  Purity  workers  are  constantly  placed  in 
jeopardy  because  of  the  uncertainty  of  the  judicial  test  of 
obscenity  and  because  these  laws  have  in  some  instances  been 
made  the  means  of  injustice  and  cruel  wrong;  and  in  view 
of  the  fact  also  that  the  indefinite  character  of  the  law 
renders  it  impossible  for  anyone  to  know  whether  he  is  acting 
within  the  law,  or  is  violating  the  law,  and  because  the  law 
has  been  made  a  menace  and  a  hindrance  to  many  earnest 
workers  whose  efficient  help  is  most  seriously  needed,"  etc.2 
Similar  resolutions,  complaining  of  the  uncertainty  of  the  law 
and  offering  definite  suggestions  for  amendment,  were  adopted 
by  the  joint  session  of  the  medical  and  surgical  sections  of 
the  State  Medical  Society  of  Illinois.3 

The  foregoing  statements  are  entitled  to  great  weight 
because  in  each  case  they  come  from  persons  who  expressly 
approve  the  general  purposes  of  the  laws  in  question,  and 
their  complaints  are  in  the  nature  of  an  admission  against 
interest. 

Lawyers  have  also  noted  the  difficulty  of  knowing  what 
is  penalized.  Thus  Edward  Livingston,  one  of  the  greatest 
lawyers  of  his  time,4  while  revising  the  penal  code  of  Louisi- 
ana, when  he  came  to  that  class  of  offenses  against  "morals," 
wrote  to  a  distinguished  colleague,  thus:  "There  is  another 
evil  of  no  less  magnitude,  arising  from  the  difficulty  of 
defining  the  offense.  Use  the  general  expression  of  the 
English  Law,  and  a  fanatic  judge  with  a  like-minded  jury 
will  bring  every  harmless  levity  under  the  lash  of  the  law. 
Sculpture  and  painting  will  be  banished  for  their  nudities, 
poetry  for  the  warmth  of  its  descriptions,  and  music,  if  it 
excites  any  forbidden  passion,  will  hardly  escape."5 

A  noted  English  law-writer  makes  this  comment :  "It  is 
impossible  to  define  what  is  an  immoral  or  obscene  publication. 
To  say  that  it  necessarily  tends  to  corrupt  or  deprave  the 
morals  of  readers  supplies  no  definite  test."6 

2The  Light,   Nov.,    1906. 

^Medical   Record,   Oct.    12th,    1907,   p.    599-600. 

4See  Columbia  Law  Review,  p.  32,  Jan.,   1902. 

5Life  of  Edward  Livingston,  by  Chas.   Haven   Hunt,  p.   289. 

6Paterson,   Liberty  of  Press  and   Speech,   etc.,  p.   70. 

327 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

There  is  also  judicial  admission  of  the  uncertainty  and 
consequent  arbitrariness  of  the  statute.  Thus  it  is  said,  "the 
law  is  arbitrary."7  In  a  concurring  opinion  in  the  leading 
English  case  this  language  is  used:  "Therefore  it  appears 
to  me  very  much  a  question  of  degree,  and  if  the  matter  were 
left  to  a  jury,  it  would  depend  very  much  on  the  opinion, 
which  the  jury  might  form  of  that  degree  in  such  a  publica- 
tion as  this."8a  One  American  court  speaks  of  "the  elasticity 
of  the  language  used  by  Congress,  necessarily  [?]  so  general 
in  its  description  of  the  offense."9  Another  court  admits 
that,  "Whether  act  or  language  is  obscene  depends  upon 
circumstances,"10  which  circumstances,  however,  are  not  defined 
in  the  statute.  Again  it  is  declared :  "The  views  that  different 
persons  might  entertain  of  the  tendency  and  effect  of  such 
publications  are  so  various  that  these  questions  ought  to  be 
submitted  to  a  jury,"11  and  so,  instead  of  being  a  matter  of 
statute  law,  every  case  in  effect  "is  one  which  addresses  itself 
largely  to  your  [the  jurors']  good  judgment,  common  sense, 
and  knowledge  of  human  nature  and  the  weakness  of  human 
nature."12  The  same  thought  comes  from  another  court: 
"Now  what  are  obscene,  lascivious,  lewd,  indecent  publications 
is  largely  a  question  of  your  own  conscience  and  your  opin- 
ion,"™ and  not  a  matter  of  statutory  definition.  "The  question 
whether  the  contents  of  the  publication  in  question  come  within 
the  prohibition  of  the  statute  is  one  upon  which  there  might 
be  a  difference  of  opinion,"™  because  the  statute  has  not 
defined  the  crime.  Again:  "The  question  of  obscenity  in 
any  particular  article  must  depend  largely  on  the  place,  man- 
ner, and  object  of  its  publication,"15  but  how,  and  why,  these 
control  is  nowhere  defined  with  any  precision.  "It  is  wholly 
unimportant  what  may  have  occurred  elsewhere  in  the  con- 
sideration of  this  question,"118  because  there  is  no  common 
standard  of  judgment  binding  upon  all  Federal  Courts.  An- 
other court  declared :  "Obscenity  is  determined  by  the  common 
sense  and  feelings  of  mankind  and  not  by  the  skill  of  the 
learned,"17  nor  by  the  statutes  or  even  the  judge-made  tests. 

7U.    S.   vs.   Harman,   45   Fed.   Rep.   421. 
SQueen  vs.  Hicklin,  L.   R.  3,  Q.  B.   378. 

a  In   this,   as  in  most  other  quotations,   the  italics  are  mine. — T.    S. 
»U.    S.   vs.   Davis,   38   Fed.   Rep.  327. 
10U.   S.  vs.   Smith,   45   Fed.   Rep.   477. 
"U.  S.  vs.  Clarke,  33  Fed.  Rep.  502. 
12U.   S.  vs.  Clarke,  38  Fed.  Rep.  734. 

^Instruction    approved   in   Dunlop  vs.   U.    S.    165    U.    S.    500. 
"In  re  Coleman,   131    Fed.   Rep.    152. 
«U.    S.    vs.    Harman,    38    Fed.    Rep.    829. 

i«U.    S.    vs.    Sherman,    unofficially    reported   by    Mr.    Comstock    in    "Morals, 
not  Art  or  Literature,"  p.   33. 

"Commonwealth  vs.  Landis,   8  Phila.  453. 

3*8 


VARIETIES  OF  CRITERIA  OF   GUILT. 

Even  the  judicial  legislation  has  not  improved  matters. 
The  words  "obscene,  indecent,"  etc.,  "can  not  be  said  to  have 
acquired  any  technical  significance/'11  The  same  comes  from 
another  court:  "It  would  therefore  appear  that  the  term 
'public  indecency'  has  no  fixed  legal  meaning,  is  vague  and 
indefinite."19  And  so  after  all  the  judicial  legislation  in  aid 
of  the  statute,  "The  word  [obscene]  can  not  be  said  to  be 
.a  technical  term  of  the  law,  and  is  not  susceptible  of  exact 
definition  in  its  juridical  uses."2( 

However,  it  may  be  suggested  that  all  this  admitted 
uncertainty  is  due  to  uncertainty  of  evidence  and  not  to  the 
uncertainty  of  the  law.  It  has  been  shown  that  the  statutory 
words  do  not  furnish  any  definite  criteria  of  guilt,  and  that 
often  the  practical  operation  of  the  statute  is  to  produce 
contradictory  results  when  applied  by  different  courts  to  the 
same  subject-matter.  It  remains  to  show  by  a  comparison  of 
the  judicial  legislation  creating  criteria  of  guilt,  that  these 
are  so  conflicting  as  to  leave  undiminished  the  uncertainty  as 
to  what  are  the  standards  of  judgment.  It  is  quite  apparent 
that  the  tests  of  obscenity  are  determined  by  the  necessities 
of  each  case,  and  adjusted  to  accomplish  the  judicial  desire, 
predetermined  by  considerations  other  than  those  expressed 
in  the  statute  and  derived  from  mere  moral  sentimentalism 
and  feeling-convictions.  Even  when  taken  separately,  the 
judicial  tests  of  obscenity  are  as  uncertain  as  the  statute, 
upon  which  they  engraft  unconstitutional  amendments  on  the 
pretense  of  interpretation.  Taken  collectively,  they  leave  us 
in  a  worse  muddle  than  could  have  been  imagined  from  a 
mere  reading  of  the  statute. 

FACT  OR  LAW? 

"Whether  obscene  or  not  is  a  question  of  law  and  not  of 
fact;  that  question  is  for  the  court  to  determine  and  not  for 
the  jury."21 

The  pictures  "should  be  exhibited  to  the  jury  for  them 
to  determine  as  a  matter  of  fact  in  the  exercise  of  their  good 
sense  and  judgment  whether  or  not  they  were  obscene  or 
indecent."22 

18U.   S.  vs.  Harman,  45   Fed.   Rep.   417. 

i»McJunkins  vs.  State,  10  Ind.  145.  See  also  Redd  vs.  State  (Ga.)  67  So. 
East.  Rep.  709. 

20Timmons  vs.   U.    S.   85   Fed.   Rep.   205.   C.   C.   A. 

2iMcNair  vs.  People,  89,  HI,  441;  U.  S.  vs.  Bennett,  Fed.  Case,  14571, 
p.  1099;  in  U.  S.  vs.  Shepard,  160  Fed.  Rep.  584  (Utah)  Trial  9  court  directed 
verdict  of  guilty,  see  record  in  C.  C.  A.  Also  in  U.  S.  vs.  Heywood,  trial  court 
•directed  a  verdict  of  guilty. 

22People  vs.   Muller,   32  Hun.   211. 

329 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

"The  Judge  may  rightfully  express  his  opinion  respecting- 
the  evidence  and  it  may  sometimes  be  his  duty  to  do  so,  yet 
not  so  as  to  withdraw  it  from  the  consideration  and  decision 
of  the  jury."23 

"Ordinarily  it  is  a  question  for  the  determination  of  a 
jury.  But  it  is  within  the  province  of  the  court  to  construe 
the  objectionable  document  so  far  as  necessary  to  decide 
whether  a  verdict  establishing  its  obscenity  would  be  set 
aside  as  against  evidence  and  reason/'24 

"The  ultimate  solution  of  that  rests  with  the  jury  to  the 
same  extent  that  in  civil  prosecutions  for  libel  and  in  criminal 
prosecutions  since  the  declaratory  act  of  the  32  Geo.  Ill, 
c.  60."25 

"Rather  is  the  test  what  is  the  judgment  of  the  aggregate 
sense  of  the  community  reached  by  it."26  "It  is  a  question 
for  the  jury  to  pass  upon  under  proper  instructions."27 

IS  THE   STATUTE  TAUTOLOGICAL? 

"Obviously  the  words  'obscene'  and  'of  an  indecent  char- 
acter' are  treated  in  this  opinion  [165  U.  S.  311]  as  con- 
vertible expressions,  equivalent  in  meaning."28 

"The  word  'lascivious'  is  very  nearly  synonymous  with  the 
word  'lewd';  so  nearly  so  that  I  will  not  undertake  to  draw 
a  distinction  between  the  two  words."29 

"The  words  'obscene',  'lewd',  and  'lascivious'  as  employed 
in  the  statute  are  not  used  interchangeably/'30 

MAY    COMPARISONS    BE    MADE? 

"You  [jurors]  are  not  sent  here  to  try  other  books  nor 
to  compare  this  book  'with  other  books,  and  you  heard  the 
court  rule  out  all  other  books."3 

"So  far  as  your  experience  goes,  the  effect  that  Shake- 
speare's writings,  or  any'  other  author's  writings,  have  had 
in  the  world,  notwithstanding  certain  passages  that  they  con- 
tain, you  have  the  right  to  resort  to  that  experience  in  de- 
termining what  will  be  the  probable  effect  of  the  publication 

23Commonwealth   vs.   Landis,    8,    Phila.    453. 

24U.  S.  vs.  Smith,  45  Fed.  Rep.  418. 

25U.   S.  vs.  Clarke,  38  Fed.   Rep.   50;    U.   S.  vs.   Harman,  45   Fed.   Rep.   418. 

26U.   S.   vs.  Harman,   45   Fed.   Rep.   417. 

27U.    S.    vs.    Moore,    129.    F.    R.    160. 

28Timmons  vs.  U.  S.  85  Fed.  Rep.  205.   (C.  C.  A.) 

29U.  S.  vs.  Clarke,  38  Fed.  Rep.  733. 

SOU.  S.  vs.  Smith,  45  Fed.  Rep.  477;  U.  S.  vs.  Bennett,  Fed.  Case  No 
14571,— 16  Blatch.  338;  U.  S.  vs.  Britton,  17  Fed.  Rep.  733;  U.  S.  vs.  Males, 
51  Fed.  Rep.  42. 

31U.    S.  vs.   Bennett,   Fed.   Case   14571,   p.    1105. 

330 


VARIETIES  OF  CRITERIA  OF  GUILT. 

involved  in  this  case,  provided  you  think  such  comparison,  or 
reference  to  such  experience,  will  be  of  service  and  will  aid 
you  in  reaching  a  correct  conclusion."32 

DOES    THE   DEPOSIT    COMPLETE   THE   OFFENSE? 

"The  act  of  depositing  [obscene  matter  in  the  mails]  must 
be  held  to  constitute  the  entire  offense."33 

"The  statute  does  not  make  criminal  the  mere  depositing  in 
a  post-office  of  obscene  matter,  even  though  it  be  'knowingly' 
deposited."34 

CONTRADICTION    AS    TO    "KNOWINGLY^    IN    INDICTMENT. 

"It  [the  indictment]  is  defective  because  it  does  not  allege 
that  the  defendant  knew  that  the  writings,  papers,  etc.,  which 
she  is  charged  with  having  deposited  in  the  mail,  for  mailing 
and  delivery,  were  of  an  obscene,  lewd,  and  lascivious  charac- 


"The  indictment  alleges  that  the  defendant  knowingly 
deposited  this  non-mailable  picture  *  *  *  *  Believing  that  the 
defendant  was  fully  informed  of  the  matter  charged  against 
him,  notwithstanding  the  cases  cited  to  me  of  Com.  vs.  Boyn- 
ton,  12  Cush.  499;  U.  S.  vs.  Slenker,  32  Fed.  Rep.  691,  I  am 
constrained  to  hold  that  this  indictment  is  sufficient."36 

EVIDENCE  ALIUNDE. 

"If  the  terms  employed  do  not  in  and  of  themselves 
reasonably  convey  the  suggestion  of  obscenity,  lewdness,  or 
lasciviousness,  they  cannot  be  eked  out  by  evidence  aliunde."87 
Yet  in  the  case  of  U.  S.  vs.  Bennett  et  al,  of  the  N.  Y. 
Herald,  such  evidence  was  the  sole  reliance  of  the  prosecution ; 
Advertisements  leading  to  immoral  resorts  were  basis  of  the 
charge.  I  believe  the  same  was  true  in  the  case  of  U.  S.  vs. 
Dunlop. 

AS  TO  OBSCENITY  ON   SUSPICION. 

Indictment  on  letter  from  a  married  man  to  an  unmarried 
woman  inviting  her  to  visit  a  neighboring  city  with  him 
clandestinely,  the  purpose  of  the  visit  not  being  disclosed  in 
the  letter,  and  it  w'as  free  from  immoral  language.  "The  court 

32U.    S.    vs.    Clarke,    38   Fed.    Rep.    735. 

33U.    S.   vs.   Commerford,    25   Fed.    Rep.    903. 

34U.   S.  vs.   Brazeau,  78  Fed.   Rep.   465. 

35U.  S.  vs.  Slenker,  32  Fed.  Rep.  695;  in^U.  S.  vs.  Macfadden,  165  Fed. 
Rep.  51  (N.  J.).  First  indictment  was  dismissed  on  this  ground:  Com.  vs.  Boyn- 
ton,  12  Cush.  499. 

««U.  S.  vs.  Clark,  37  Fed  Rep.  107-108;  Shephard  vs.  U.  S.,  160  Fed. 
Rep.  584. 

37U.   S.  vs.   Moore,   129   Fed.   Rep.    160. 

331 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

cannot  see  how  any  other  construction  can  be  put  upon  them 
than  that  they  are  within  the  meaning  of  the  statute.  *  *  *  * 
It  is  difficult  to  conceive  what  can  be  more  shocking  to  the 
modesty  of  a  chaste  and  pure-minded  woman  than  the  proposi- 
tion contained  in  these  letters."31 

In  a  similar  case,  a  "letter  free  from  the  immoral  language 
inhibited  by  the  statute,  written  apparently  for  the  purpose  of 
seduction  or  assignation,"  produced  the  following  opinion: 
"For  a  letter  to  be  obnoxious  to  this  statute  its  language  must 
be  obscene,  lewd,  or  lascivious  and  it  must  be  of  indecent 
character.  The  statute  does  not  declare  that  the  letter  must 
be  written  for  an  obscene  or  indecent  purpose,  but  that  the 
letter  itself,  in  its  language,  shall  be  of  indecent  character. 
When  a  law  denounces  a  letter  containing  obscene  language, 
and  does  not  denounce  a  letter  decent  in  terms  but  written 
for  an  indecent  purpose,  an  indictment  founded  only  upon 
the  obscene  purpose  cannot  be  maintained."31 

"The  language,  'go  to  bed  with  me/  is  itself  neither  obscene 
nor  vulgar,  and  has  never  before  been  so  held.  *  *  *  *  Taken 
in  connection  with  the  surrounding  circumstances  in  this  case, 
the  conclusion  is  very  natural  that  the  defendant  intended 
this  as  a  proposition  to  violate  chastity.  *  *  *  *  As  there  is 
nothing  obscene  or  vulgar  in  the  language  itself,  though  it 
makes  a  proposition  that  ought,  in  my  opinion,  to  be  criminal, 
I  do  not  feel  at  liberty  to  embrace  it  by  construction."40 

WHOSE  OPINION,  THE  JUROR'S,  THE  PUBLIC'S, 
OR  THE  PURIST'S? 

"Sitting,  as  the  court  does  in  this  case,  in  the  stead  of 
the  jury,  it  may  not  apply  to  the  facts  its  own  method  of 
analysis  or  process  of  reasoning  as  a  judge,  but  should  try  to 
reflect  in  the  findings  the  common  experience,  observation,  and 
judgment  of  the  jury  of  average  intelligence."41 

Here,  then,  was  a  judge  with  much  more  intelligence  than 
an  average  jury,  who,  by  applying  his  "own  method  of 
analysis  and  reasoning,"  might  conclude  that  a  book  was  not 
"obscene,"  but,  believing  that  a  jury  of  lesser  intelligence 
would  conclude  otherwise,  he  decided  it  would  be  his  duty  to 
find  the  defendant  guilty.  The  test  of  obscenity  was  the 

38U.   S.   vs.   Martin,   50   Fed.   Rep.   921. 
39U.    S.   vs.   Lamkin,   73   Fed.    Rep.   463. 

40Dillard,  vs.  State,  41  Ga.  279.     See  concurring  opinion.     See  also,  Edwards 
•vs.  State,  85   S.   W.   Rep.   797.    (Tex.) 

«U.   S.  vs.  Harman,  45   Fed.  Rep.   418. 

332 


VARIETIES  OF  CRITERIA  OF  GUILT. 

"judgment  of  the  jury  of  average  intelligence"  and  the  jury's- 
"own  opinion."*2 

"A  book  to  be  obscene  must  appear  so  to  the  mind  of  the 
pure  not  to  the  impure  merely."** 

IMMORAL  INFLUENCE  ON  ADDRESSEE  DECISIVE. 

"The  inquiry  as  to  the  tendency  of  the  letter  must  be 
narrowed  to  the  liability  to  corrupt  the  addressee."44 

"Even  an  obscene  book,  or  one  that  in  view  of  the  subject 
matter  would  ordinarily  be  classed  as  such,  may  be  sent 
through  the  mails  or  be  published  to  certain  persons  for 
certain  purposes.  For  example,  a  treatise  on  venereal  diseases 
might  be  sent  through  the  mail  or  delivered  to  a  student 
or  practitioner  of  medicine,  and  perhaps  to  other  persons  for 
certain  purposes."45 

"I  cannot  doubt  that  proper  and  necessary  communication 
between  physicians  and  patients  touching  any  disease  may 
be  properly  deposited  in  the  mail.  The  statute  is  not  to 
receive  a  strained  construction."46 


"Without  regard  to  the  character  of  person  to  whom  they 
are  directed."47 

"Have  sexual  intercourse  with  me"  is  held  obscene  even 
though  "addressed  to  a  prostitute."48  Even  her  morals  are 
guarded  against  impure  suggestion  by  this  tender  and  maternal 
statute. 

"IMMORAL"  INFLUENCE  ON  ORDINARY  READER  DECISIVE. 

"It  must  be  calculated  with  the  ordinary  reader  to  deprave 
him."49 

"Tendency  to  vitiate  the  public  taste  and  to  debauch  the 
public  morals."50 


"The  matter  must  be  regarded  as  obscene  if  it  should  have 
a  tendency  to  suggest  impure  and  libidinous  thoughts  in  the 

42Dunlap  vs.  U.   S.   165,  U.   S.  488. 

«Com.  -vs.  Abbie  Dyke  Lee.     Unofficially  reported  in  Heywood's  Defense,  p.  29. 
«U.  S.  vs.  Wroblensky,  118  Fed.  Rep.  496;  U.  S.  vs.  Moore,  129  Fed.  Rep.. 
163;   Edwards  vs.   State,  85   So.   W.   Rep.   797. 
«U.  S.  vs.  Clarke,  38  Fed.  Rep.  502. 
*6U.    S.   vs.   Smith,   45    Fed.   Rep.   478. 
47U.    S.   vs.   Cheeseman,    19   Fed.    Rep.   498. 
*8Kelly  vs.   State,   55   So.    E.   Rep.   482. 
49 Ruling  approved  in  Dunlap  -vs.  U.   S.  165  U.   S.  488. 
soMontross  vs.   State,   72  Ga.  266. 

333 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

minds  of  those  open  to  the  influence  of  such  thought.  *  *  *  * 
Whether  the  tendency  of  the  matter  charged  as  obscenity  is 
to  deprave  and  corrupt  those  whose  minds  are  open  to  such 
immoral  influence,  and  into  whose  hands  a  publication  of  this 
sort  may  fall."51 

FITNESS  FOR  "MORAL"  INSTRUCTION  TO  CHILDREN  IS  DECISIVE. 

"Such  as  should  go  into  their  [the  jury's]  families  and 
be  handed  to  their  [the  jurors']  sons  and  daughters,  and 
placed  in  boarding  schools  for  the  beneficial  information  of 
the  young  and  others,  then  it  was  [the  jury's]  duty  to  acquit 
the  defendant."52 

"UNBECOMING"  LITERATURE. 

The  mere  quality  of  being  "unbecoming"  is  criterion  of 
"obscenity."53 

On  the  contrary,  it  is  held  that  "unbecoming  or  even 
profane"  language  is  not  within  the  inhibition  of  the  statute.5* 

CONFLICTS    AS    TO    "TASTE"    AND    "SHOCK"    AS    TESTS. 

The  general  notion  is  that  protection  to  "morality"  was 
the  only  thing  sought.  But,  according  to  some,  the  esthetic 
sense  was  also  to  be  protected.  However,  here  as  everywhere 
else  there  is  conflict  of  authority. 

"Offensive  to  delicacy"  is  held  sufficient."55 

"Shocks  the  ordinary  and  common  sense  of  men  as  an 
indecency."56 

"Tendency  to  vitiate  the  public  taste"  is  a  material  element 
according  to  another  court.57 

"If  it  is  such  as  to  offend  the  sense  of  delicacy."™ 

"An  obscene  writing  was  defined  as  one  offensive  to 
decency,  indelicate,  impure,  and  an  indecent  one,  as  one  un- 
becoming, immodest,  unfit  to  be  seen."59 

"That  which  shocks  the  ordinary  and  common  sense  of 
men  as  an  indecency  is  the  test,"  AND  YET ! ! 

"The  court  must  *  *  *  *  not  allow  a  hypercritical  judg- 
ment to  take  advantage  of  the  elasticity  of  the  language  used 

61U.  S.  vs.  Bennett,  Fed.  Case,  14571,  p.  1104;  U.  S.  vs.  Debout,  28  Fed. 
Rep.  523;  U.  S.  vs.  Slenker,  32  Fed.  Rep.  693. 

62Com.  vs.  Landis,  8  Phila.  R.  454;  U.  S.  vs.  Heywood,  Off.  Sten.  Rep. 
Morals,  not  Art  or  Lit.  22;  U.  S.  vs.  Silas  Hicks,  Off.  Sten.  Rep.  Morals,  not  Art 
or  Literature;  U.  S.  vs.  Cheeseman,  19  Fed.  Rep.  498. 

53U.   S.  vs.  Williams,   3   Fed.   Rep.   485. 

"U.   S.  vs.  Smith,   11   Fed.   Rep.   664. 

B6U.    S.    vs.    Britton,    17   Fed.    Rep.    733. 

66U.    S.    vs.    Davis,    38    Fed.    Rep.    328. 

STMontross  vs.    State,    72    Ga.    266. 

B8U.  S.  vs.  Sherman,  (from  official  Stenog.  notes,  see  Comstock's  Morals, 
mot  Art  or  Literature,  p.  33.) 

59U.   S.   vs.   Williams,   3   Fed.    Rep.   485. 

334 


VARIETIES  OF  CRITERIA  OF  GUILT. 

by  Congress,  *  *  *  *  by  bringing  within  the  act  words  and 
thoughts  that  are  only  rude,  impolite,  or  not  in  good  taste, 
according  to  the  standard  of  decency  prescribed  by  the  purists 
in  language  and  thought."61 

ARE    WORDS    OBSCENE    PER    SE  ? 

"There  are  in  the  language  words  known  as  words  obscene 
in  themselves."61 

"There  is  not  a  single  word  in  the  language,  however 
coarse,  low,  or  vulgar,  that  may  not  be  and  is  not  often 
used  to  convey  proper  and  decent  ideas,  and  it  is  a  mawkish 
and  realy  an  indelicate  and  immodest  sensitiveness  that  blushes 
at  a  word  which  may  be  used  obscenely,  but  which  the  occasion 
and  the  context  show  not  to  be  so  used."62 

MUST  THE  LANGUAGE  BE  "OBSCENE"  ? 

"Inasmuch  as  every  letter  is  written,  and  is  a  composition 
of  words,  it  necessarily  follows  that  for  a  letter  to  be  ob- 
noxious to  this  statute  its  language  must  be  obscene,  lewd, 
or  lascivious,  and  it  must  be  of  an  indecent  character."61 

"The  language  or  communication  may  be  free  from  the 
condemnation  of  the  statute  in  one  instance  while  it  would 
clearly  fall  within  it  when  addressed  to  other  persons."61  But 
who  are  these  authorized  obscenists? 

"It  is  of  no  consequence  that  the  language  employed  may 
be  pure."65 

"The  poison  of  the  asp  may  lie  beneath  the  honeyed  tongue 
just  as  a  beautiful  flower  may  contain  a  deadly  odor.  It  is 
the  effect  of  the  language  employed  *  *  *  *  which  is  struck 
at  by  the  statute."66 

WHEREIN    MUST    THE    OBSCENITY    BE? 

Here  then  it  is  held  that  the  words  sent  through  the  mail 
must  be  obscene.  Other  cases  say  that  the  words  need  not 
be  obscene;  it  is  enough,  though  expressed  in  choicest  words, 
if  the  idea  is  obscene.  Again  it  is  said  that  neither  the 
words  nor  the  idea  actually  expressed  need  be  obscene;  it 
being  enough  if  these  convey  only  to  the  most  prurient 

60U.  S.  vs.  Davis,  38  Fed.  Rep.  327;  U.  S.  vs.  Smith,  11  Fed.  Rep.  664; 
U.  S.  vs.  Wightman,  29  Fed.  Rep.  636. 

eiU.  S.  vs.  Bennett,  Fed.  Case,  14571,  p.  1102;  U.  S.  vs.  Harman,  38 
Fed.  Rep.  829. 

62Dillard   vs.    State,    41,    Ga.    280. 

63U.   S.  vs.   Lamkin,   73   Fed.   Rep.  463;   Dillard  vs.   State,  41    Ga.   279. 

64U.  S.  vs.  Wroblensky,  118  Fed.  Rep.  496. 

65U.  S.  vs.  Smith,  45  Fed.  Rep.  478;  U.  S.  vs.  Males,  51  Fed.  Rep.  421; 
CT.  S.  vs.  Hanover,  17  Fed.  Rep.  444. 

eeu.  S.  vs.  Moore,   129  Fed.  Rep.   160. 

335 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

imagination  a  mere  suggestion  of  obscenity.  And  again  it  is 
decided  that  it  can  not  be  that  every  suggestion  of  lascivious 
ideas  is  prohibited. 

"It  can  not  be  that  every  writing  or  publication  which  in 
any  way  suggests  a  thought  of  the  relation  of  the  sexes  is 
obscene,  lewd,  and  lascivious.  That  would  place  upon  the 
court  a  vast  burden  of  separating  the  little  matter  that  is 
mailable  from  the  grand  mass  and  majority  of  literature  which 
would  be  non-mailable."67 

INTENT    IS    MATERIAL. 

"I  have  but  little  patience  with  those  self -constituted 
guardians  and  censors  of  the  public  morals  who  are  always 
on  the  alert  to  find  something  to  be  shocked  at,  who  explore 
the  wide  domain  of  art,  science,  and  literature  to  find  some- 
thing immodest,  and  who  attribute  impurity  where  none  is 
intended.  *  *  *  *  The  question  of  obscenity  in  any  particular 
article  must  depend  largely  on  the  place,  manner,  and  object 
of  its  publication.''68 

"The  question  of  the  violation  of  the  statute  rests  upon 
the  import  and  presumed  motive."69 

"Words  get  their  point  and  meaning  almost  entirely  from 
the  time,  place,  circumstances  and  intent  with  which  they  are 
used.  *  *  *  *  The  intention  of  the  defendant  who  used  the 
language  and  the  purpose  for  which  he  used  it  *  *  *  * 
constitutes  the  offense."70 

"We  think  it  would  also  be  a  proper  test  of  obscenity  in 
a  painting  or  statue  whether  the  motive  of  the  painting  or 
statue,  so  to  speak,  as  indicated  by  it,  is  pure  or  impure."71 

INTENT    IS    IMMATERIAL. 

"A  mistaken  view  of  the  defendant  as  to  the  character 
and  tendency  of  the  book,  if  it  was  in  itself  obscene  and  unfit 
for  publication,  would  not  excuse  his  violation  of  the  law."72 

"The  statute  does  not  declare  that  the  letter  must  be  writ- 
ten for  an  indecent  or  obscene  purpose/'78 

"The  criminal  character  of  the  publication  is  not  affected 

67U.   S.  vs.   Larkin  &  Adams   (Wash.   March   11,   1902)    from   Official   Stenog. 
Rep. 

«8U.  S.  vs.  Harman,  38  Fed.  Rep.  828-9. 

e»U.   S.  vs.   Wroblensky,    118    Fed.    Rep.    496;    Smith   &  Crocker,   vs.    State- 
24  Tex.   Cr.  App.   1. 

70Dillard  vs.   State,    41    Ga.    280-281.      The  second   sentence   is   from  a  con- 
curring opinion. 

7iPeople  vs.  Muller,  96  N.  Y.  410. 

"Com.  vs.  Landis,  8  Phila.  455. 

73U.   S.  vs.  Lamkin,  73   Fed.   Rep.   463. 

336 


VARIETIES  OF  CRITERIA  OF  GUILT. 

or  qualified  by  there  being  some  ulterior  object  in  view  of  a 
different  and  honest  character."74 

"I  have  stated  the  object  with  which  the  book  is  written 
is  not  material,  nor  is  the  motive  which  leads  the  defendant 
to  mail  the  book  material.  *  *  *  *  His  motive  may  have  been 
ever  so  pure;  if  the  book  he  mailed  is  obscene,  he  is  guilty  "n 

"Where  the  writings  *  *  *  *  are  of  an  obscene,  lewd,  or 
lascivious  character,  the  fact  that  they  were  sent  in  the  real 
or  supposed  interest  of  science,  philosophy,  or  morality,  is 
immaterial."  (syllabus)76 

UNCERTAINTY  AS  TO  MEDICAL  BOOKS. 

"I  am  not  prepared  to  say  and  it  is  not  necessary  now  to 
decide  whether  these  medical  books  could  be  sent  through  the 
mails  without  violating  the  statute."77 

"Nor  does  the  truth  or  falsity  of  the  publication  make 
any  part  of  the  offense."78 

If,  as  many  cases  hold,  truth  and  good  motives  are  im- 
material, and  the  character  of  the  person  to  whom  the  matter 
is  sent  is  also  immaterial,  then  a  book  which  would  be  obscene 
if  handed  to  an  adolescent  or  pubescent  child  must  also  be 
so  if  mailed  to  a  physician.  However,  sometimes  the  judicial 
dictum  repudiates  this  logical  consequence. 

"I  have  no  doubt  that  under  the  statute,  under  which  this 
indictment  is  found,  standard  medical  works  *  *  *  *  may  be 
sent  through  the  mails  to  persons  who  buy  or  call  for  them 
for  the  purpose  of  seeking  information."79 

However,  according  to  another  authority  they  may  not 
be  offered  to  all  with  a  view  to  stimulating  the  desire  for 
information. 

"Even  scientific  and  medical  publications  containing  illus- 
trations exhibiting  the  human  form,  if  wantonly  exposed  in 
the  open  markets,  with  a  wanton  and  wicked  desire  to  create 
a  demand  for  them  and  not  to  promote  the  good  of  society 
by  placing  them  in  proper  hands  for  useful  purposes,  would, 
if  tending  to  excite  lewd  desires,  be  held  to  be  obscene 

74Regina  vs.  Hicklin,  L.  R.  3,  Q.  B.  360;  Steele  vs.  Brannan,  L.  R.  7, 
C.  P.  261 . 

"U.  S.  vs.  Bennett.  Fed.  Rep.,  Case  14571,  p.  1102;  U.  S.  vs.  Clarke, 
38  Fed.  Rep.  502;  U.  S.  vs.  Debout,  28  Fed.  Rep.  524. 

76Charge  quoted  in  U.  S.  vs.  Slenker,  32  Fed.  Rep.  691;  State  vs.  Brown, 
27  Vt.  619. 

77U.  S.  vs.  Cheesrman,  19  Fed.  Rep.  498. 

"U.  S.  vs.  Debout,  28  Fed.  Rep.  525;  Com.  vs.  Landis,  8  Phila.  453;  U.  S. 
vs.  Bennett,  Fed.  Case  14571. 

"U.  S.  vs.  Clarke,  38  Fed.  Rep.  733;  U.  S.  vs.  Smith,  45  Fed.  Rep.  478. 
337 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

libels."  *  *  *  *  That  it  is  'true  and  scientifically  correct'  is 
immaterial."80 

"The  object  no  doubt  is  to  display  the  nature  of  a  par- 
ticular disease  and  the  effect  of  a  particular  medicine,  but 
it  is  not  commendable,  even  to  medical  men,  to  display  such 
representations  in  public."8 

Mr.  Comstock  tells  of  one  Sherman  who  was  three  times 
arrested  for  circulating  a  book  on  hernia.  The  first  two  trials 
resulted  in  acquittal,  because  the  jury  did  not  consider  it 
obscene.  On  the  third  trial  the  court  instructed  the  jury  that 
they  must  consider  the  verdict  of  other  juries  as  immaterial, 
and  then  invented  some  new  test  of  obscenity  which  resulted 
in  conviction.82 

JUDICIAL  TESTS  OF  "OBSCENITY^  APPLIED. 

Nowhere  else  is  the  judicial  "intelligence"  so  utterly  devoid 
of  real  enlightenment  as  when  dealing  with  these  problems 
of  abnormal  psychology  and  sex-psychology.  Were  it  not  so 
pathetic,  we  could  find  great  humor  in  the  judicial  hysteria 
over  "obscene"  literature.  Unconscious  of  the  fact  that  the 
obscenity  is  the  contribution  of  the  reading  mind,84  our  "most 
learned  judges"  when  trying  to  objectivize  the  judicial  moral- 
sentimentalism,  by  judicial  legislation  creating  tests  of  ob- 
scenity, make  standards  which  are  not  only  very  contradictory 
but  also  very  ludicrous  when  examined  from  the  view-point 
of  the  scientist.  It  seems  as  though  judges  think  of  them- 
selves as  possessed  of  a  capacity  for  acquiring  a  knowledge 
of  science  by  some  mysterious  occult  means,  which  make 
it  unnecessary  for  them  to  investigate  before  expressing  a 
judicial  determination  involving  scientific  problems. 

Probably  the  most  frequently  used  "tests"  of  obscenity, 
etc.,  are  the  following:  "Where  the  tendency  of  the  matter 
is  to  deprave  and  corrupt  the  morals  of  those  whose  minds 
are  open  to  such  influences  and  into  whose  hands  a  publica- 
tion of  this  sort  may  fall  *  *  *  *  the  statute  uses  the  word 
'lewd/  which  means  having  a  tendency  to  excite  lustful 
thoughts."85  I  intend  to  apply  the  foregoing  "tests  of  ob- 

80Com.  vs.  Landis,  8  Phila.  453;  U.  S.  vs.  Burton,  142  Fed.  Rep.  58;  U.  S. 
vs.  Cheeseman,  19  Fed.  Rep.  498. 

SiReg.  vs.  Grey,  4  Foster  and  Finlanson,  79. 
82U.    S.   vs.    Sherman,   Morals,   not   Literature  or   Art,   p.   33. 
84Ellis'    Studies    in    the    Psychology    of    Sex,    Vol.    VI.    p.    54;    Varieties    of 
Official    Modesty,    Albany   Law   Journal,    Aug.    1908;    Legal    Obscenity   and    Sexual 
Psychology,    Alienist    and    Neurologist,    Aug.    1908;    What    is    Criminally    Obscene, 
Albany  Law  Journal,  July   1906. 

85U.   S.   vs.   Blnnett,   Fed.   Case,   No.   14571,   Vol.   24,  p.   1102. 

338 


VARIETIES  OF  CRITERIA  OF  GUILT. 

scenity"  to  a  few  related  facts,  well  known  to  the  psychiatrist, 
in  order  that  their  connection,  and  the  crass  judicial  ignorance 
concerning  the  import  of  these  "tests,"  may  become  more 
generally  known. 

Krafft-Ebing,  in  quoting  the  confession  of  a  masochist, 
gives  this  as  the  language  of  the  afflicted  one:  "That  one  man 
could  possess,  sell,  or  whip  another  caused  me  intense  excite- 
ment ;  and  in  reading  'Uncle  Tom's  Cabin'  (which  I  read 
about  the  beginning  of  puberty),  I  had  erections.  Particularly 
exciting  to  me  was  the  thought  of  a  man's  being  hitched  up 
before  a  wagon  in  which  another  man  sat  with  a  whip,  driving 
and  whipping  him."86 

Here  then  is  a  case  where  conviction  would  have  been 
dependent,  not  upon  the  jurors'  mere  a  priori  speculation, 
but  upon  the  admitted  fact  that  the  "tendency"  of  "Uncle 
Tom's  Cabin,"  according  to  the  judicial  ignorance,  is  to 
"deprave  and  corrupt  the  morals  of  those  whose  minds  are 
open  to  such  influences"  and  that  it  has  a  demonstrated 
"tendency  to  excite  lustful  thoughts."  Thus,  by  the  generally 
accepted  judicial  tests  of  obscenity,  our  "most  learned"  judges 
condemn  "Uncle  Tom's  Cabin"  as  being  an  "obscene"  and  a 
"lewd"  book,  and  it  is  a  crime  to  sell  it,  or  to  send  it  by  mail 
or  express,  if  the  "law"  (?)  is  uniformly  enforced. 

One  need  but  know  the  facts  of  sexual  fetichism  and  apply 
the  judicial  "test"  of  obscenity,  to  an  apron,  feathers — any 
item  of  female  attire,  such  as  the  shoe,  furs,  handkerchiefs, 
gloves,  silks,  velvets,  or  even  a  woman's  hand,  or  hair,  or 
perfumes,  and  thus  demonstrate  that  in  themselves  each  of 
these  is  an  object  of  "public  indecency"  and  "obscenity"  be- 
cause "to  those  whose  minds  are  open  to  such  influences,"  to 
wit,  certain  sexual  fetichists,  it  has  a  demonstrated  "tendency 
to  excite  lustful  thoughts." 

Dr.  Havelock  Ellis  recently  wrote  this:  "The  case  has 
lately  been  reported  of  a  young  schoolmaster  who  always  felt 
tempted  to  commit  a  criminal  assault  by  the  sight  of  a  boy 
in  knickerbockers;  that  for  him  was  an  'obscene'  sight — must 
we,  therefore,  conclude  that  all  boys  in  knickerbockers  should 
be  forcibly  suppressed  as  'obscene' ?86a  Most  assuredly !  If  the 
judicial  tests  of  obscenity  and  lewdness  are  to  be  applied,  it 
becomes  a  public  indecency,  in  many  States  criminally  punish- 
able, to  permit  a  boy  in  knickerbockers  to  be  seen  in  public, 

sepsychopathia  Sexualis,   Chaddock  translation,  p.   105. 
860Free  Press  Anthology,  p.   224. 

339 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

and  a  picture  of  such  a  boy  would  be  an  "obscene  and  indecent^ 
a  lewd  and  lascivious"  print,  within  the  meaning  of  the  postal 
law,  because  it  has  a  demonstrated  "tendency  to  deprave  and 
corrupt  the  morals  of  those  whose  minds  are  open  to  such 
influences";  because  in  such  persons  the  picture  of  a  boy  in 
knickerbockers  has  a  demonstrated  "tendency  to  excite  lustful 
thoughts." 

The  literature  of  sadism  also  furnishes  illustrations  of  the 
crass  ignorance  involved  in  our  judicial  "tests  of  obscenity." 
"There  is  a  case  of  a  boy  who  experienced  sexual  feeling  by 
viewing  the  picture  of  a  battle  scene,"87  hence  such  pictures 
are  "obscene  and  indecent,  lewd  and  lascivious,"  and,  there- 
fore, criminal  if  sent  by  mail.  Again  our  author  writes:  "A 
surgeon  confessed  to  the  writer  that  while  reading  in  a  surgical 
work  a  description  of  the  puncture  of  a  festered  wound,  he 
found  himself,  to  his  astonishment,  in  a  state  of  sexual  excite- 
ment." Therefore,  according  to  the  judicial  "test  of  obscenity," 
a  book  on  surgery  is  non-mailable  because  "obscene  and  in- 
decent," etc.,  it  being  now  a  demonstrated  fact  that  such  books 
have  "a  tendency  to  excite  lustful  thoughts,"  and,  therefore, 
by  the  official  "logic,"  a  tendency  "to  deprave  and  corrupt 
the  morals  of  those  whose  minds  are  open  to  such  influences 
and  into  whose  hands  a  publication  of  this  sort  may  fall,"  to 
wit,  certain  sadists. 

Maj.  R.  W.  Shufeldt,  a  distinguished  scientist  and  a  retired 
army-surgeon,  while  denouncing  the  absurdity  of  suppressing 
the  literature  of  human  topographical  anatomy,  said:  "My 
studies  have  brought  me  much  evidence  in  this  matter.  It  is 
only  the  sadist  who  quivers  with  sexual  excitement  as  he  or 
she  stands  and  views  the  whips  and  a  few  other  implements 
in  the  windows  of  a  harness-store,  and  not  the  normal  being; 
it  is  only  the  hopeless  sexual  pervert  who  is  driven  to  libidid- 
inous  gratification  after  viewing  the  piston  copulating  with 
the  cylinder  on  the  side  of  a  locomotive,  and  not  the  healthy 
minded  engineer  in  the  cab.  *  *  *  *  One  case  came  to  my  knowl- 
edge of  a  man  who  was  so  delicately  balanced  sexually  that 
he  could  not  view  in  the  window  of  a  fish  store  a  lot  of  hard- 
shelled  clams  that  the  association  of  the  name,  and  the  outline 
of  the  posterior  aspect  of  the  bivalve,  did  not  suggest  to  his 
mind  the  external  sexual  parts  of  woman  and  greatly  excite 
him  as  a  consequence.  All  this  constitutes  no  valid  reason^ 

STArthur    MacDonald    in    Medico-Legal  Journal,    for    March,    1907. 
340 


VARIETIES  OF  CRITERIA  OF  GUILT. 

however,  for  our  prohibiting  a  whip  display  in  a  trademan's 
window,  do  [ing]  away  with  the  locomotive,  or  suppress  [ing] 
the  public  sale  of  clams."88 

Here  then  we  have  it  demonstrated  according  to  the  most 
generally  accepted  judicial  criteria  of  "obscenity"  that  "Uncle 
Tom's  Cabin,"  a  book  on  surgery,  a  hard-shelled  clam,  a  horse- 
whip, a  lady's  shoe,  glove,  handkerhcief,  and,  in  fact,  every- 
thing on  earth  is  legally  "obscene,  indecent,  lewd,  or  lascivi- 
ous," because  to  some  minds  lewdness  has  been  or  may  be 
suggested  by  it. 

There  was  a  time  when  the  Federal  Supreme  Court  still 
subordinated  the  will  of  its  judges  to  constitutional  law.  Then 
it  was  said:  "It  would  certainly  be  dangerous  if  the  legis- 
lature could  set  a  net  large  enough  to  catch  all  possible  of- 
fenders, and  leave  it  to  the  courts  to  step  inside  and  say  who 
could  be  rightfully  detained  and  who  shall  be  set  at  large."8' 
Will  it  adhere  to  that  doctrine  when  moral  sentimentalism  is 
involved?  In  many  fields  of  jurisprudence  we  are  the  help- 
less victims  of  the  arbitrary  will  of  a  lawless  judiciary.  This 
lawless  judiciary  in  the  matter  of  obscenity  has  legislated  into 
existence  "criteria  of  guilt"  so  contradictory  as  to  be  meaning- 
less, so  inclusive  as  to  make  everyone  a  criminal,  and,  when 
applied  to  all  conceivable  cases,  so  fantastic  in  their  result  as 
to  make  our  courts  a  laughing  stock  of  the  alienist.  And 
these  courts,  which  unconstitutionally  enact  such  contradictory 
and  extremely  absurd  criteria  of  obscenity,  tell  us:  "These 
are  matters  which  fall  within  the  range  of  ordinary  in- 
telligence" ;90  and,  "Everyone  who  uses  the  mails  *  *  *  *  must 
take  notice  of  what  in  this  enlightened  age  is  meant  by 
decency,  purity,  and  chastity  in1  social  life  and  what  must  be 
deemed  'obscene,'  lewd,  and  lascivious."91  BAH!!! 

But,  our  judges  are  not  solely  to  blame  for  being  so 
densely  ignorant  as  not  even  to  suspect  the  fact.  The  blame 
lies  farther  back  with  our  moralists  for  revenue,  who,  with 
the  stupid  sentimentalists,  have  so  nearly  suppressed  all  liter- 
ature not  in  harmony  with  the  theology  of  sex  that  the  aver- 
age physician  is  quite  as  ignorant  as  our  "most  learned  judges." 
Dr.  Wm.  J.  Robinson  edits  several  journals  for  his  profes- 


Medical  Journal,   March,   1909,   p.    152. 
89U.  S.  vs.  Reese  92  U.  S.  219-221. 
90pe0ple  vs.  Muller,  96,  N.  Y.   410. 

9iU.    S.    vs.    Rosen    161    U.    S.    42,    See    also,    Redd   vs.    State,    176    Fed. 
Rep.    944. 

341 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

sional  brethren,  and  makes  something  of  a  specialty  of  ve- 
nereal subjects.  Yet  he,  who  is  accounted  among  the  leaders 
in  his  profession,  wrote  this:  "And  so  [as  in  the  case  of 
beauty  and  ugliness]  it  is  in  regard  to  obscenity;  the  thing  in 
itself  is  not  obscene;  in  the  midst  of  the  desert  or  at  the 
bottom  of  the  sea,  it  is  not  obscene.  But  if  it  induces  some 
people,  however  small  a  number,  to  commit  indecent,  unhealthy 
things,  then  the  thing  is  indecent,  and  no  amount  of  sophistry 
can  do  away  with  the  fact."92 

No!  the  judges  are  not  the  only  ones  whose  minds  are 
"uncorrupted  by  learning"  on  sexual  psychology,  and  they 
are  not  to  be  blamed  for  their  ignorance,  only  for  their  un- 
willingness to  be  enlightened.  But  what  shall  we  say  of  the 
moralists  for  revenue  and  the  quack-moralists  in  the  medical 
profession? 

CONCLUSION. 

It  has  been  demonstrated  that,  whether  viewed  as  a  prob- 
lem of  abstract  psychology,  of  sexual  psychology,  abnormal 
psychology,  ethnography,  juridicial  history,  or  considered  in 
the  light  of  the  mutual  distructiveness  of  the  judicially  cre- 
ated criteria  of  guilt,  or  their  all  inclusiveness  and  the 
grotesqueness  resulting  from  their  general  application,  in 
every  aspect  we  find  absolute  demonstration  of  the  correctness 
of  the  occasional  judicial  admission  that  the  statutes  under 
consideration  do  not  prescribe  the  criteria  of  guilt  by  which 
judge  or  jury  determines  that  the  law  has  been  violated. 

It  will  next  be  exhaustively  shown  that  such  certainty  rin 
the  criteria  of  guilt  is  essential  to  the  validity  of  a  penal 
statute.  The  conclusion  contended  for  is  well  stated  in  a 
recent  case  where  it  is  said:  "A  crime  can  be  created  only  by  a 
public  act,  and  the  language  of  the  act  must  be  sufficient  to  com- 
pletely declare  and  define  the  crime  and  affix  the  punish- 
ment. *  *  *  *  The  discretion  of  fixing  what  facts  import 
criminality  is  exclusively  that  of  the  lawmaker  as  distinguished 
from  the  executive/'93  or  court.  It  follows  from  the  co- 
ordination of  these  propositions  that  all  of  these  laws  are 
nullities,  because  "Where  the  law  is  uncertain  there  is  no  law/* 
and,  consequently,  no  "due  process  of  law." 

92  Altruria,  1907,  p.  2.      Italics  are  mine. — T.   S. 

»3U.   S.  vs.  Louisville  and  N.  Ry.  Co.   176  Fed.   Rep.   944. 


342 


CHAPTER    XVIII. 

"DUE  PROCESS  OF  LAW"  IN  RELATION  TO  STATU- 
TORY UNCERTAINTY  AND  CONSTRUCTIVE 
OFFENSES. 

PART  I. 
The  Scientific  Aspect  of  "Law."1 

In  all  the  annals  of  the  past,  one  of  the  most  conspicuous 
features  in  the  struggle  for  liberty  has  been  the  fight  against 
constructive  crimes,  which  includes  that  against  punishment 
for  imaginary  or  psychologic  injuries.  The  condition  of  En- 
gland, before  the  days  of  the  revolution,  is  thus  described  by 
Edward  Livingston,  Secretary  of  State  under  President 
Jackson,  and  reputed  to  be  "the  greatest  lawyer  of  his  time," 
in  his  official  report  to  the  Louisiana  Legislature. 

"The  statute  gave  the  texts,  and  the  tribunals  wrote  the 
commentary  in  letters  of  blood,  and  extended  its  penalties  by 
the  creation  of  constructive  offenses.  The  vague  and  some- 
times unintelligible  language  employed  in  the  penal  statutes 
gave  a  seeming  color  of  necessity  to  this  assumption  of  power, 
and  the  English  nation  have  submitted  to  the  legislation  of  its 
courts,  and  seen  their  fellow-subjects  hanged  for  constructive 
treason,  and  roasted  alive  for  constructive  felonies,  quartered 
for  constructive  heresies,  with  a  patience  that  would  be  aston- 
ishing, even  if  their  written  law  had  sanctioned  the  butchery." 

It  appears,  historically,  that  those  baneful  constructive 
crimes  developed  from  several  specific  causes.  A  union  of 
church  and  state  resulted  in  punishing  the  mere  constructive 
injury  of  heretical  speech ;  the  witchcraft  superstition  resulted 
in  punishing  the  mere  constructive  cause  of  material  injuries ; 
the  abridgment  of  the  freedom  of  speech  and  of  the  press 
also  punished  psychologic  crimes  based  upon  mere  constructive 
injuries ;  these,  with  the  evils  of  judicial  legislation  in  defining 
the  criteria  of  guilt,  were  all  of  the  sources  for  those  evils 

*By  special  permission  revised  and  republished  from  the  American  Law 
Review,  for  June,  1908. 

343 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

which  are  so  often  denounced  under  the  name  of  constructive 
offenses.  Our  ancestors  saw  the  evils  and  their  practical  con- 
crete origins,  but  apparently  did  not  concern  themselves  with 
the  generalization  of  the  ultimate  tests  by  which  to  determine 
the  essence  of  all  constructive  offenses.  Notwithstanding  this, 
they  very  effectively  barred  the  door  against  any  recurrence  of 
such  evils,  if  we  will  but  construe  our  constitution  in  the  light 
of  a  truly  scientific  conception  of  the  law,  such  as  will  be 
formulated  hereinafter. 

To  obviate  the  recurrence  to  punishment  of  mere  psycho- 
logic or  constructive  injuries,  our  forefathers  prohibited  the 
union  of  church  and  state,  and  the  abridgment  of  freedom  of 
speech  and  of  the  press.  To  the  same  end,  and  to  preclude 
judicial  legislation  and  its  arbitrary  tyrannies,  they  separated 
the  functions  of  the  legislative  and  judicial  branches  of  our 
government,  and  then,  as  including  all  these  and  more  be- 
sides, they  made  the  more  general  and  comprehensive  guar- 
antee that  no  man  should  be  deprived  of  life,  liberty  or  prop- 
erty without  due  process  of  law. 

In  spite  of  all  these  safeguards,  and  innumerable  judicial 
denunciations  of  the  punishment  of  constructive  offenses,  it 
seems  to  me  that  all  about  me  I  discover  such  penalties  being 
inflicted,  without  its  inducing  much  of  a  protest.  In  seeking 
for  an  explanation,  I  have  been  led  to  the  conclusion  that  it  is 
to  be  found  in  the  fact  that  in  reducing  the  lawyer's  calling 
from  a  profession  to  a  business,  we  have  put  so  high  a  pre- 
mium upon  his  commercial  acumen  that  we  have  reduced  the 
lawyer  from  a  scientist  of  the  law  to  a  business  executive. 
The  result  is  that  not  one  lawyer  in  ten  thousand  has  a  truly 
scientific  conception  of  the  law,  or  of  its  essential  nature.  As 
best  I  can  I  intend  to  point  out  the  nature  of  "law"  as  I 
believe  the  few  intelligent  lawyers  view  it,  and  then  I  will 
endeavor  to  deduce  therefrom  criteria  for  determining  what 
are  constructive  offenses,  especially  in  their  relation  to  "due 
process  of  law" 

THE  LAW  AS  A  SCIENCE. 

It  is  often  said,  let  us  hope  not  always  in  sarcasm,  that  the 
law  is  a  science.  I  wonder  if  those  who  speak  these  words 
really  know  what  they  signify.  I  shall  undertake,  I  fear  in 
an  inadequate  way,  to  state  what  such  words  mean  to  me. 
Men  have  a  scientific  conception  of  the  law  only  when  they 

344 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

see  legal  truth  as  a  formulated  expression  of  the  natural  law 
of  our  social  organism.  To  conceive  this  as  a  "law"  we  must 
understand  it,  not  as  a  mere  acquaintance  with,  or  memory- 
knowledge  of,  the  verbally  uttered  decision  in  this  case  or 
that,  or  under  these  or  other  special  states  of  fact,  but  we 
must  understand  these  special  legal  truths  in  all  their  neces- 
sary relations  to  one  another,  as  constituent  elements  in  the 
induction  leading  to  the  most  comprehensive  generalization; 
and  again,  all  must  be  seen  according  to  their  own  necessary 
logical  classifications  as  mere  special  examples  of  the  broad- 
est rational  generalization  of  legal  truth,  to  which  all  concrete, 
instances  must  be  referred,  and  from  which  all  specific  de- 
cisions must  be  made,  by  the  process  of  deduction.  It  is  not 
enough  that  we  discover  some  more  or  less  crude  analogies 
between  these  facts  and  those,  and  thus  by  an  empirical  in- 
duction make  the  decision  in  that  case  fit  this ;  on  the  con- 
trary, the  law  has  not  reached  the  dignity  of  a  science  until 
we  see  the  relation  of  all  its  special  cases  to  those  general 
principles  which  are  decisive  of  all  causes  belonging  to  the 
same  general  class.  Let  me  make  a  quotation  by  way  of 
illustration.  "During  its  early  stages,  planetary  astronomy  con- 
sisted of  nothing  more  than  accumulated  observations  re- 
specting the  positions  and  motions  of  the  sun  and  planets; 
from  which  accumulated  observations  it  came  by  and  by  to  be 
empirically  predicted,  with  an  approach  to  truth,  that  certain 
of  the  heavenly  bodies  would  have  certain  positions  at  certain 
times.  But  the  modern  science  of  planetary  astronomy  con- 
sists of  deductions  from  the  law  of  gravitation — deductions 
showing  why  the  celestial  bodies  necessarily  occupy  certain 
places  at  certain  times." 

To  have  accumulated  a  knowledge  of  the  kind  of  judg- 
ments entered  in  a  large  number  of  cases  is  not  to  know  "law" 
— nor  to  be  a  scientist  of  the  law.  To  make  empirical  induc- 
tions from  such  accumulated  knowledge  may  enable  us  to  de- 
cide cases  with  an  approach  to  truth  and  justice,  but  the  result 
is  not  "law"  in  the  only  sense  in  which  a  scientist  of  the  law 
can  use  that  word.  The  lawyer,  whose  intellectual  attainments 
are  such  as  to  make  him  a  scientist  of  the  law,  must  have 
adopted  the  scientific  method  for  the  ascertainment  of  legal 
truth.  The  scientific  method  requires  that  his  empirical  gen- 
eralizations shall  have  been  included  in  a  rational  generaliza- 


345 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

tion,  which  is  the  formulated  statement  of  the  law,  because  it 
determines  conclusively  from  the  nature  of  things  how  and 
why  certain  judgments  must  be  so  and  thus,  the  result  always 
being  derived  by  deductions  from  the  ultimate  rational  gener- 
alizations, by  which  process  the  law  thus  determines  the  de- 
cision in  every  particular  case,  which  law  must  always  be  con- 
formed to,  irrespective  of  a  direct  estimate  of  the  beneficence 
of  its  result  in  any  particular  instance.  It  is  this,  and  this 
alone,  which,  in  my  judgment,  makes  the  law  a  science,  and 
though  I  should  be  convinced  that  not  many  lawyers  are  legal 
scientists,  still  I  would  not  despair.  If  our  conception  of  the 
law  falls  short  of  being  a  scientific  one,  it  can  be  only  because 
the  judges  and  legislators  whose  duty  it  is  to  formulate  verbal 
statements  of  the  law  have  not  attained  the  intellectual  stature 
of  scientists. 

If  "the  law"  is  a  system  of  rational  generalizations  to 
which  all  specific  controversies  must  be  referred,  and  by  de- 
ductions from  whose  uniform  standards  all  controversies  must 
be  conclusively  decided,  then  it  follows  that  if  no  such  certain 
and  uniform  controlling  standard  is  prescribed  by  the  legisla- 
tive enactment,  and  where,  because  of  that  fact  (especially  in 
criminal  cases),  courts  are  left  free  to  pronounce  their  judg- 
ments (of  guilt  or  innocence)  by  empirical  inductions  based 
upon  their  differing  personal  experience,  then,  under  such  cir- 
cumstances I  say,  courts  do  not  declare,  and  are  not  governed 
by  "the  law"  but  themselves  are  unconsciously  seeking  by 
their  judicial  legislation  to  create  law,  and  enforce  their  own 
arbitrary  edicts ;  they  are  not  enforcing  or  maintaining  natural 
law  according  to  the  formulated  precepts  of  it,  made  by  the 
proper  authority,  but  instead  they  become  the  executioners  of 
their  own  lawless  wills.  All  this  is  but  another  way  of  vindi- 
cating the  maxim,  "where  the  law  is  uncertain  there  is  no  law." 
From  the  foregoing  speculations  it  already  appears  that  the 
law  is  something  outside  of  and  independent  of  the  judicial 
mind.  Let  us  now  make  further  inquiry  as  to  the  nature  of 
law,  from  the  scientific  viewpoint. 

ON  THE  NATURE  OF  THE  LAW. 

If  we  would  know  what  is  to  be  understood  by  a  con- 
structive breach  of  the  law  we  must  first  achieve  a  very 
definite  conception  of  the  nature  of  law.  After  that  we 
can  better  discern  all  the  conditions  which  might  constitute  its 

346 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

constructive  breach,  as  distinguished  from  its  actual  infraction. 
Just  as  the  laws  of  mathematics  are  not  created  by  the 
mathematicians,  nor  the  physical  laws  by  the  physicists,  who 
discover  or  make  formal  statements  of  them,  as  also  the  laws 
of  our  thinking  are  not  products  of  thinking,  so  the  laws — 
the  real  laws — of  a  state  are  never  products  of  judicial  cerebra- 
tion. All  laws  are  pre-suppositions  which  alone  make  our 
thinking  about  them,  and  statement  of  them,  possible.  The 
province  of  the  court  is  to  discover,  declare  and  enforce,  the 
prior  existing  law,  and  never  to  construct  or  create  law.  To 
declare  the  law  means  only  to  formulate  a  verbal  statement  of 
it  as  it  exists,  prior  to  and  apart  from  the  judicial  formula, 
and  outside  of  the  judicial  mind.  Thus  the  civil-state  law,  in 
its  proper  and  technical  sense,  is  but  natural  justice,  as  we  find 
it  in  the  very  nature  of  our  inter-human  relations,  and  in  the 
formulated  statements  of  it  and  such  other  artificial  legisla- 
tively created  rules  of  conduct  as  the  law-making  power  prop- 
erly may  enact,  but  enact  only  in  furtherance  of  the  security  and 
realization  of  natural  justice  among  sentient  beings.  These 
considerations  it  seems  to  me  are  the  reasons  underlying  the 
following  language  from  the  Supreme  Court  of  the  United 
States:  "In  the  ordinary  use  of  language  it  will  hardly  be 
contended  that  the  decisions  of  courts  constitute  law.  They 
are,  at  most,  only  evidence  of  what  the  laws  are ;  and  are  not 
of  themselves  laws."2 

ON  THE  REQUIREMENT  OF  NATURAL  JUSTICE. 

The  laws  of  natural  justice  are  in  the  nature  of  things  and 
exist  wholly  independent  of  our  knowledge  of  them,  and  would 
still  exist  though  every  verbally  expressed  statement  of  them 
should  be  destroyed.  It  follows  that  judicial  opinions  and 
statutes  should  do  no  more  than  merely  to  declare  our  highest 
conception  of  the  most  refined  sense  of  natural  justice  to  which 
humanity  has  now  attained,  and  to  provide  for  its  practical 
realization.  If  it  does  either  less  or  more  than  this,  it  is  a 
misconception  of  the  law,  and  its  enforcement  should  be  de- 
clared beyond  the  power  of  any  court.  To  declare  otherwise 
would  be  to  assert  that  our  state  machinery  may  be  used  de- 
liberately and  consciously  to  accomplish  a  wrong — to  violate 
natural  justice,  or,  what  for  practical  purposes  amounts  to  the 
same  thing,  our  best  human  conception  of  it. 

"Swift  v.  Tyson,  16  Peters  18. 

347 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

In  accordance  with  the  foregoing  conception  of  law  as  ex- 
isting in  the  nature  of  things,  or  as  being  a  human  regulation 
conducing  to  the  practical  maintenance  of  natural  justice,  it 
follows  that  juridical  systems  must  always  conform  to  right 
reason,  because  the  essence  of  right  reason  consists  in  the  very 
fact  of  a  conformity  of  our  thinking  with  the  natural  order  of 
things  outside  our  minds.  More  technically  expressed,  we  say 
legal  truth,  which  is  but  a  subordinate  department  of  truth  as 
a  whole,  is  "the  exact  correspondence  between  the  subjective 
order  of  our  [the  judge's]  conception  and  the  objective  order 
of  the  relation  among  things."3  If  then  a  true  conception  of 
law  in  civil  matters  is  one  which  is  an  exact  correspondence 
with  natural  justice,  as  this  exists  in  and  is  derived  from  the 
very  nature  of  things,  and  as  a  mere  part  of  the  natural  law  of 
our  social  organism,  then  our  formulated  statements  of  the  law 
must  always  conform  to  right  reason,  because  such  conformity 
is  the  very  essence  of  a  true  conception  of  the  law.  Thus  un- 
derstood it  is  hardly  possible  to  disagree  with  Blackstone  and 
those  authorities  following  him,  who  say:  "Statutes  which 
violate  the  plain  and  obvious  principles  of  common  right  and 
common  reason  are  null  and  void."4 

Upon  the  supremacy  of  natural  law,  as  the  original  of  all 
our  formulated  statements  of  law,  Montesquieu  wrote  this: 
"How  iniquitous  the  law  which,  to  preserve  a  purity  of  mor- 
als, overturns  nature,  the  origin  and  the  source  of  all 
morality."6 

Later  Blackstone  expressed  himself  about  the  supremacy 
of  natural  law  in  these  words:  "No  human  laws  are  of  any 
validity  if  contrary  to  the  law  of  nature ;  and  such  of  them  as 
are  valid  derive  all  their  force  and  all  their  authority  from 
this  original."6 

Statutes  have  been  held  unconstitutional  merely  because 
"manifestly  contrary  to  the  first  principles  of  civil  liberty  and 
natural  justice."7 

"Reason  and  the  nature  of  things,  which  will  impose  laws 
even  upon  the  Diety."8 

•Fiske's,  Cosmic  Philosophy. 

•Bennett  v.  Bogge,  Fed.  Case,  No.  1819;  Morrison  v.  Barksdale,  1  Harp. 
(So.  Car.),  101;  Taylor  v.  Porter,  4  Hill  140.  (N.  Y.,  1843) 

•"The  Spirit  of  the  Laws,"  Aldine  edition,  vol.  2,  p.  556. 

•Blackstone's  Commentaries. 

THolden  v.  James,  11  Mass.  405;  Durkee  v.  City  of  Janesville,  28  Wise., 
405  and  cases;  Calder  v.  Bull,  3  Dallas,  387-388.  (U.  S.) 

8Fletcher  v.  Peck,  6  Cranch,  143,  see  dissenting  opinion;  Wilkinson  v. 
Lcland,  2  Peters,  1-658;  Terrett  v.  Taylor,  9  Crauch,  50-52. 

348 


STAT1 
T     a 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

I  am  well  aware  that  many  courts,  without  having 
weighed  the  foregoing  considerations  as  to  the  nature  of  law, 
have  held  otherwise,  but  such  courts  repudiate  and  contradict 
the  expressly  declared  purpose  of  our  Constitution  and  so  dis- 
credit themselves. 

There  is  little  excuse  for  the  existence  of  government  ex- 
cept as  affording  a  method  for  the  authoritative  formulation  of 
our  best  conception  of  natural  rules  of  justice  and  promoting 
their  realization  in  practise.  Although  the  preambles  of  our 
Federal,  and  perhaps  most  of  our  State  constitutions,  pro- 
claim their  purpose  "to  establish  justice  *****  and  secure 
the  blessing  of  liberty,"  and  though  to  the  end  of  establishing 
justice  "due  process  of  law"  was  made  mandatory,  yet  judges, 
guiltless  of  the  scientific  conception  of  the  law,  have  not  hesi- 
tated to  contradict  the  constitutionally  avowed  purpose  of  gov- 
ernment, and  of  "due  process  of  law,"  by  declaring  that  these 
words  do  "not  mean  merciful  nor  even  just  laws."9 

Judges  capable  of  saying  that  a  state  may  violate  the 
obvious  demands  of  natural  justice  (as  distinguished  from  an 
enforcement  of  laws  deciding  disputed  problems  of  justice), 
discredit  the  state,  and  invite  for  themselves  contempt.  To 
uphold  many  such  laws  as  constitutional  would  justify  and 
might  necessitate  a  revolution  by  violence,  as  a  means  of  re- 
storing liberty  and  justice. 

If,  in  a  criminal  case,  a  court  should  undertake  to  enforce 
upon  any  person  a  judgment  which  was  not  in  the  further- 
ance of  natural  justice  as  that  must  be  viewed  in  our  secular 
states,  dealing  only  with  material  factors,  and  which  did  not 
conform  to  general,  uniform  and  certain  rules  of  conduct, 
having  an  exact,  verbally  formulated  existence  outside  the 
mere  arbitrary  will  of  the  court,  and  well  known,  or  easily  ac- 
cessible to  all,  prior  to  the  acts  constituting  the  offense  then 
before  the  court — I  say,  if  a  court  should  undertake  to  enforce 
anything  different  from  such  a  law,  it  would  not  be  enforcing 
the  law  at  all,  and  to  submit  to  it  would  be  submission  to  a 
government  by  the  arbitrary  and  despotic  will  of  a  judiciary, 
unrestrained  by  subjection  to  the  law,  and  not  in  any  sense 
would  this  be  a  government  by  courts  according  to  law 
Criminal  punishment  under  such  circumstances  would  be  pun- 
ishment  for  constructive  crimes. 

•Eames  v.  Savage.  77  Me.  212. 

349 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

If  the  state,  in  violation  of  the  foregoing  injunctions, 
should  be  permitted  to  penalize  an  act  which  is  not  an  essen- 
tial element  in  doing  actual  violence  to  natural  justice  in  rela- 
tion to  material  factors,  the  statute  could  not  be  one  enacted  in 
the  furtherance  of  the  governmental  purposes  to  establish 
justice  and  secure  the  blessings  of  liberty,  and  therefore  such 
a  law  could  not  be  within  the  legitimate  province  of  such  a 
government  as  we  profess  to  maintain.  Furthermore  such  a 
statute,  penalizing  an  act  which  is  not  an  essential  element  in 
violating  such  natural  justice  in  relation  to  material  things, 
must  in  itself  be  the  creation  of  an  injustice — that  is,  it  must 
in  itself  and  from  its  very  nature  authorize  an  invasion  of 
liberty,  unwarranted  by  any  necessity  for  defending  natural 
justice  or  maintaining  equality  of  liberty,  and  therefore  the 
enforcement  of  such  a  statute  would  be  the  deprivation  of 
liberty  without  due  process  of  law,  as  we  now  understand 
law  in  the  light  of  our  foregoing  study  of  its  nature.  I  con- 
clude that  every  such  statute  as  I  have  last  hereinabove  de- 
scribed is  an  attempt  to  punish  for  a  constructive  offense — is  a 
violation  of  our  constitutional  guarantee  of  "Due  Process  of 
Law."  With  so  much  by  way  of  preliminary  discussion,  we 
may  proceed  to  some  preliminary  classification  of  constructive 
offenses  under  several  heads,  indicative  of  the  different 
sources  from  which  comes  the  tendency  toward  the  construc- 
tion of  offenses  and  the  wrongful  infliction  of  penalties  based 
upon  the  creation. 

MATERIAL   INJURY   ESSENTIAL  TO   CRIME. 

It  follows  from  the  fact  that  human  justice  and  a  secular 
State  can  deal  only  with  material  factors,  that  an  offense  to  be 
real,  and  not  merely  constructive,  must  be  conditioned  upon  a 
demonstrable  and  ascertained  material  injury,  or  an  imminent 
danger  of  such,  the  existence  of  which  danger  must  be  deter- 
mined by  the  known  laws  of  the  physical  universe.  Our  Con- 
stitution, both  in  its  guarantee  of  freedom  of  speech  and  press, 
and  in  its  guarantee  of  due  process  of  law  (as  we  now  under- 
stand the  law,  according  to  the  foregoing  analysis)  precludes 
the  construction  of  mere  psychologic  crimes.  The  offenses 
which  are  based  only  upon  ideas,  expressed  or  otherwise,  such 
as  constructive  treason,  witchcraft  and  heresy,  either  religious 
or  ethical,  and  all  kindred  psychologic,  or  other  constructive 
injuries,  are  prohibited,  because  the  very  nature  of  the  law, 

350 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

whose  supremacy  and  processes  our  Constitution  guarantees, 
is  such  that  American  legislators  cannot  be  permitted  to  predi- 
cate crime  upon  mere  psychologic  factors.  Manifestly  this 
does  not  preclude  punishment  when  these  psychologic  factors 
have  ceased  to  be  merely  such,  by  having  resulted  in  actual 
material  injury  as  distinguished  from  constructive  and  spec- 
ulative injury;  for  example,  it  does  not  preclude  punishment 
in  cases  of  personal  libel,  or  where  the  uttered  opinion  has  re- 
sulted in  crime,  under  such  circumstances  as  to  make  one  an 
accessory  before  the  fact,  or  such  as  proves  a  conspiracy  to 
secure  its  commission.  Under  such  circumstances,  no  man  is 
punished  for  a  mere  speech  as  such,  nor  for  its  psychologic 
effect  merely  as  a  psychologic  effect,  but  he  is  punished  for  his 
practical  contribution  toward  the  actually  realized  ascertained 
material  injury,  the  speech  being  only  the  evidence  of  his  com- 
plicity in  the  achievement  of  the  resultant  invasion  and  material 
damage. 

I  have  spent  so  much  space  in  efforts  to  clarify  the  vision 
as  to  this  phase  of  constructive  crimes  because  it  seeems  to  me 
to  be  very  little  understood  and  very  often  disregarded.  In  its 
practical  application,  no  doubt,  the  tests  which  I  have  pre- 
scribed will  occasionally  run  counter  to  certain  moral  senti- 
mentalizing which,  however,  we  can  afford  to  dispense  with, 
and  which  our  legislators  and  courts  will  refuse  to  regard  seri- 
ously when  we  get  an  enlightened  view  of  liberty.  For  this 
class  of  constructive  crimes  the  responsibility  rests  primarily 
with  the  legislative  department.  For  the  others,  now  to  be 
discussed,  the  courts  are  chiefly  to  blame. 

JUDICIAL  LEGISLATION  UNDER  PRETENSE  OF  INTERPRETATION. 

The  next  class  of  constructive  offenses  is  a  little  better  un- 
derstood. Here  the  act  under  investigation  is  one  which,  un- 
der the  former  tests,  may  properly  be  penalized,  but  is  not 
within  the  plain  letter  of  the  prohibitive  statute :  First,  because 
the  statutory  tests  of  criminality,  though  certain  in  meaning 
and  covering  acts  of  the  same  general  character,  do  not  include 
the  conduct  under  investigation;  or,  second,  because  the  lan- 
guage of  the  statute  is  ambiguous  and  the  act  under  investiga- 
tion is  not  clearly  within  every  possible  meaning  of  the  words 
descriptive  of  the  crime ;  or  third,  because  the  statute  is  uncer- 
tain in  that  it  prescribes  no  certain  and  decisive  tests  of  crim- 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

inality,  thus  making  it  necessary,  if  the  statute  is  to  be  enforced 
at  all,  judicially  to  interpolate  such  tests.  These  are  the  three 
classes  of  judicial  legislation  which  are  prohibited  in  criminal 
cases  by  the  guarantee  of  "Due  Process  of  Law." 

THE  JUDICIAL   ENLARGEMENT  OF  THE  STATUTE. 

In  the  first  of  these  instances  a  judicial  enlargement  of  the 
field  plainly  marked  out  by  the  statute  is  so  universally  recog- 
nized as  improper,  because  judicial  legislation  and  therefore 
within  the  domain  of  prohibited  constructive  offenses,  as  to 
need  no  argumentative  support.  Indeed,  all  our  judicial  rules 
for  the  strict  construction  of  criminal  statutes  are  founded 
upon  the  necessity  of  prohibiting  judges  from  creating  law. 

AMBIGUOUS   STATUTES   JUDICIALLY    AMENDED. 

The  second  case,  that  of  ambiguous  penal  statutes,  oftener 
seduces  judges  into  an  abuse  of  their  power  by  a  misapplication 
of  rules  of  construction.  Where  the  words  descriptive  of  a 
crime  are  ambiguous  (open  to  several  interpretations,  some  or 
all  of  which  are  very  certain  and  definite  as  to  the  criteria  of 
guilt),  it  is  erroneously  assumed  by  many  courts  that  it  is  an 
exercise  of  the  judicial  function  of  statutory  interpretation  to 
select  that  one  among  the  possible  meanings  of  the  statute 
which  is  to  be  enforced.  I  do  not  conceive  it  so.  The  judi- 
cially selected  meaning  may  not  be  the  one  which  the  legisla- 
ture intended  to  enact.  Certainly  it  has  not  received  the  spe- 
cific sanction  of  the  legislative  branch  of  the  government  any 
more  than  every  other  possible  interpretation,  and  the  only 
conduct  which  can  with  certainty  be  known  to  be  within  the 
legislative  prohibition  (that  is  within  the  law)  are  those  acts 
which  are  clearly  within  every  possible  meaning  of  the  statute. 
If  this  rule  has  not  been  always  observed  in  the  matter  of  am- 
biguous statutes  it  is  because  judges  have  not  seen  clearly  the 
true  relation  between  such  ambiguity  and  the  law. 

UNCERTAIN  STATUTES  AND  JUDICIAL  LEGISLATION. 

In  the  third  case,  where  definitive  description  of  the  crime 
is  wholly  wanting  (as  distinguished  from  ambiguity  in  the 
definition),  because  there  is  an  absence  of  any  certain,  clear, 
universal,  and  decisive  tests  of  criminality,  we  have  a  case  for 
the  application  of  the  old  maxim :  "Where  the  law  is  uncertain 
there  is  no  law."  In  such  case,  if  the  court  should  supply  the 


352 


STATT 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

tests  of  criminality  so  indispensable  to  the  enforcement  of 
every  such  statute,  those  tests  would  not  have  the  sanction  of 
the  legislative  branch  of  the  government,  and  therefore  could 
not  be  the  law,  in  any  criminal  case.  Supplying  these  criteria 
of  guilt  is  therefore  clearly  a  matter  of  judicial  legislation, 
by  means  of  statutory  interpolation,  as  distinguished  from 
interpretation,  and  punishment  thereunder  is  punishment  for 
a  constructive  offense,  and  not  "due  process  of  law." 

If,  then,  we  do  as  we  ought  and  look  to  the  very  nature 
of  our  social  organism  to  derive  therefrom  our  conception  of 
law,    as  that   word  is   used   in  our   state   constitutions,   and 
the  fifth  amendment  of  our  federal  constitution,  then,  because 
the  very  essence  of  "law"  is  natural  justice,  and  because  the 
establishment  of  that  justice  is  expressly  declared  to  be  the 
purpose  of  our  constitutions,  it  follows  that  "law"  must  always 
stand  as  the  destroyer  of  every  vestige  of  arbitrary  power, 
which  is  always  open  to  be  capriciously  exercised  or  unequally 
applied,  and  therefore  opens  the  gates  to  the  worst  forms  of 
legalized    injustice.      In  the  scientific  aspect,  the  "law"  is  a 
general  rule  of  civil  conduct  (not  religious,  nor  merely  self- 
regarding,  nor  relating  to  matters  of  opinion  or  of  speech 
so  long  as  the  material  effect  of  these  terminate  with  the  in- 
dividual) which  rule  of  civil  conduct  must  exist  in  the  nature 
of   things  or  be  duly  enacted,  in  the  furtherance  of  natural 
justice,  by  the  duly  constituted  law-making  power,  and  the 
enactment  and    its    publication  must  precede  the  conduct  to 
which  it  is  to  be  applied;  which  rule  of  conduct  to  be  "law" 
must  not  do  violence  to  natural  justice,  and  therefore  every 
statute  penal  in  character,  or  one  creating  artificial  rights,  if 
it  is  to  be  "law,"  from  the  inherent  necessity  of  its  formal 
statement  (not  by  accidental  uniformity  in  the  judicial  inter- 
polation   or    construction)  must  be  general  and    equal,  fixed 
and  certain,  as  to  all  persons  who  in  the  very  nature  of  things 
bear  the  same  relationship  to  one  another  and  to  the  state; 
and  such  statute  cannot  from  its  inherent  necessity  be  gen- 
eral and  equal  in  its  application  to  all  similarly  situated,  unless 
it  be  also  so  plain  and  exact  in  its  description  of  the  right  cre- 
ated or  the  conduct  prohibited,  and  in  its  criteria  of  guilt,  that 
every  man  of  average  intelligence,  from  a  mere  reading  of  the 
statute  may  know  with  mathematical  certainty,  in  every  con- 
ceivable state  of  fact,  why  and  how  his  legislatively  created 


353 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

right  attaches  or  lapses,  and  whether  or  not  his  proposed  con- 
duct is  permitted  or  penalized;  furthermore,  a  penal  statute 
can  predicate  an  offense  and  its  punishment  only  upon  an 
actually  ascertained  material  injury,  or  the  imminent  danger  of 
such,  ascertained  according  to  the  known  laws  of  our  physical 
universe,  which  material  injury  must  be  imminent  to,  or  actu- 
ally realized  by,  some  sentient  being,  not  giving  a  voluntary, 
undeceived  consent,  or  one  who  from  immaturity  or  infirmity 
is  incapacitated  for  giving  that  consent.  If  a  statute  does 
not  conform  to  all  these  requirements,  then  I  believe  it  can- 
not be  the  law,  and  all  penalties  inflicted  under  such  other 
statutes  are  the  deprivation  of  life  or  property  for  mere  con- 
structive offenses,  and  cannot  constitute  "due  process  of  law." 
We  pass  now  from  these  general  considerations  to  the  more 
specific  consideration  of  uncertainty  in  criminal  statutes. 


354 


CHAPTER  XIX. 

"DUE  PROCESS  OF   LAW"  IN   RELATION  TO 

STATUTORY    UNCERTAINTY    AND 

CONSTRUCTIVE    OFFENSES. 

PART  II. 

•General      Considerations     Concerning     Uncertainty    and    Due 
Process  of  Law.™ 

That  a  deprivation  of  liberty  or  property  may  be  due  proc- 
ess of  law,  two  things  must  occur.  First,  there  must  be  a 
valid  "law,"  within  the  meaning  of  that  word  in  the  consti- 
tutional phrase  "due  process  of  law,"  and  secondly  the  process 
prescribed  by  that  law  must  be  accurately  pursued.  Here  I 
am  directly  concerned  only  with  one  phase  of  the  question: 
What  is  essential  as  to  the  content  of  a  legislative  enactment 
to  make  it  a  criminal  "law"  within  the  meaning  of  the  Con- 
stitution? Judicial  opinions  have  often  commented  upon  uni- 
formity and  universality  of  application,  to  all  who  in  the  nature 
of  things  are  similarly  situated,  as  an  essential  to  the  very 
existence  of  a  law.  Here  it  is  proposed  to  discuss  only  the 
effect  of  uncertainty  in  a  criminal  statute,  as  related  to  the  non- 
existence  of  "law",  because  under  such  uncertain  statutes 
-courts  must  indulge  in  constitutionally  prohibited  judicial  legis- 
lation ;  and  because  statutory  uncertainty  excludes  the  require- 
ment of  unavoidable  uniformity  of  application  to  all  who  are 
naturally  similarly  situated.  In  other  words,  it  is  proposed  to 
resurrect  the  ancient  maxim,  "Ubi  jus  incertum  ibi  jus  nullum" 
(where  the  law  is  uncertain  there  is  no  law)  and  to  make  it  a 
rule  for  the  interpretation  of  the  "due  process  of  law"  clause 
of  our  constitutions. 

In  order  that  my  conclusions  may  not  be  discredited  by 
the  use  of  felse  analogies,  I  deem  it  wise  to  begin  with  a  short 
analytical  statement  which  will  differentiate  the  problem  which 
I  propose  to  discuss  from  kindred  problems  arising  from  un- 
certainties of  other  than  criminal  statutes,  and  the  probable 

"Revised  from  Tht  Central  Law  Journal,  Jan.  3,  1908. 

355 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

different  effect  which  uncertainty  may  produce  in  different 
classes  of  legislation.  Even  though  the  preliminary  discussion 
may  be  superficial,  it  seems  needful  since  I  have  nowhere  found 
any  general  discussion  of  the  subject. 

UNCERTAIN  STATUTES  CLASSIFIED. 

It  is  conceivable  that  some  civil  enactment  of  a  legislature 
would  merely  be  an  effort  verbally  to  declare,  and  legally  to 
establish  and  maintain,  some  rule  of  natural  justice,  which  is 
inherent  in  the  nature  of  things  and  of  the  social  organism. 
Uncertainty  in  such  a  statute,  resulting  from  an  unfortunate 
choice  of  words,  could  do  no  serious  injustice  even  though 
the  court,  either  by  legitimate  construction  or  judicial  legisla- 
tion, should  make  it  certain,  if  in  doing  so  nature's  rule  of 
justice  was  not  violated,  nor  artificial  penalties  inflicted.    It  is 
probable  that  uncertainty  in  such  a  statute  would  not  neces- 
sarily effectuate  its  annulment.     At  any  rate,  I  exclude  that 
class  of  cases  from  my  discussion.    A  second  class  of  statutes 
which  might  be  objected  to  because  of  uncertainty,  are  those 
which  create  artificial  civil  remedies  for  the  maintenance  of 
natural  justice.     Here  again  ambiguity  and  uncertainty  can 
be  judicially  eliminated  in  accordance  with  the  legislative  in- 
tent, if  that  is  reasonably  ascertainable  from  the  act  itself, 
and  no  injury  result  to  innocent  parties,  because  the  postulate 
was  that  the  maintenance  of  natural  justice  was  the  only  end 
to  be  achieved  by  the  use  of  this  new  artificial  remedy.     For 
the  same  reason  such  laws  may  also  be  retroactive.11 

The  third  class  of  uncertain  statutes  consist  of  such  as  de- 
clare a  rule  of  justice  not  derived  from  nature  as  such,  but  find- 
ing its  foundation  in  some  artificial  condition  of  legislative  crea- 
tion. The  limitation  of  the  liability  or  rights  of  corporate 
stockholders  might  be  an  illustration.  When  in  such  legisla- 
tion the  effect  is  to  curtail  the  responsibility  which  naturally 
should  flow  from  one's  act,  great  exactness  in  expressing  the 
legislative  intent  to  that  effect  would  be  required,  since  every 
intendment  must  be  indulged  in  favor  of  the  natural  conse- 
quences of  one's  act  operating  under  natural  conditions.  But 
I'm  not  going  to  discuss  this  either.  I  have  mentioned  these 
classes  only  to  point  out  superficially  their  probable  difference 
from  the  next  class,  so  that,  in  the  mind  of  the  reader,  my 

"Chamberlain  v.  City  of  Evansville,  77  Ind.  551;  Davis  v.  Ballard,  1  Mar- 
shall (Ky.),  579. 

356 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

argument  may  not  be  subjected  to  unmerited  discredit,  because 
of  the  thoughtless  use  of  false  analogies. 

The  fourth  class  of  legislation,  of  which  uncertainty  may 
be  an  attribute,  includes  all  those  laws  which  are  intended  to 
create  and  enforce  artificial  rights  or  which  are  punitive  in 
their  character.  The  creation  of  artificial  rights  such  as  arise 
from  the  establishment  of  a  public  postal  system,  patent  rights, 
and  copyrights,  are  all  laws  of  this  character  wherein  the 
statute  must  describe  with  the  accuracy  required  for  a  penal 
statute  upon  what  conditions  the  right  may  vest  or  be  de- 
stroyed, else  again  we  are  governed  by  the  arbitrary  will  of 
men,  and  not  according  to  the  law. 

The  relationship  of  "due  process  of  law"  to  an  uncertainty 
in  the  statutory  specification  of  that  which  is  made  punishable 
by  it,  is  the  special  matter  here  to  be  discussed. 

Every  State  in  the  union  has  from  one  to  several  score 
of  penal  statutes  in  which  no  words  of  exact  meaning  serve 
to  define  with  any  certainty  what  it  is  that  is  prohibited.  In 
the  last  thirty  years,  under  only  one  class  of  these  uncertain 
statutes,  about  5,000  convictions  have  been  secured,  and  it  is 
fair  to  assume  that  under  all  others,  including  an  infinite 
variety  of  vague  municipal  police  regulations,  there  have  been 
some  20,000  more  citizens  deprived  of  liberty  and  property, 
and  yet  seemingly  no  one  has  ever  doubted  that  a  conviction 
under  such  statutes  constitutes  "due  process  of  law/'  This 
makes  me  wonder  if  I  am  dreaming  or  if  the  whole  rank  and 
file  of  the  bar  and  judiciary  have  forgotten  the  original  mean- 
ing and  purpose  of  "the  law  of  the  land."  I  do  not  even  except 
the  Supreme  Court  of  the  United  States,  because  it,  like  all 
the  appellate  courts  of  all  the  states,  has  repeatedly  enforced 
such  laws  without  a  doubt  ever  crossing  its  mental  horizon, 
originating  either  with  the  court  or  the  attorneys  appearing 
there  to  argue  in  such  cases. 

The  most  conspicuous  and  most  generally  approved  ex- 
amples of  these  many  and  outrageously  uncertain  laws,  are 
those  which  in  various  ways  penalize  "indecent,  obscene,  filthy 
or  disgusting"  literature  and  art.  Those  who  need  to  have  a 
concrete  example  in  mind,  while  the  discussion  proceeds,  may 
be  thinking  of  those  laws  as  a  sample  of  many  others  which 
must  be  annulled  if  my  contention  is  correct. 


357 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 
UNCERTAIN  AND  AMBIGUOUS  STATUTES  DISTINGUISHED. 

First  of  all  we  must  bear  in  mind  the  distinction  between 
an  ambiguous  statute  and  an  uncertain  one.  An  ambiguous 
statute  I  conceive  to  be  one  which  is  expressed  in  words  some 
of  which  have  several  different  meanings,  all,  or  some  of 
which  meanings,  would  leave  the  statutory  signification  so  cer- 
tain as  not  to  require  any  additional  words  to  make  its  meaning 
plain  and  uniform  beyond  doubt,  to  every  man  of  average  in- 
telligence. When  that  is  the  case  the  problem  is  one  of  con- 
struction, in  the  method  of  which  due  regard  is  to  be  had,  first 
for  the  liberty  of  citizens  and  second  for  the  legislative  in- 
tention, which,  however,  must  be  gathered  exclusively  from 
the  words  of  the  act  itself.  The  rules  for  statutory  construction 
will  always  protect  the  accused,  so  he  shall  not  be  punished 
if  there  be  any  reasonable  doubt  as  to  whether  his  act  neces- 
sarily comes  within  the  very  letter  of  all  of  the  possible  mean- 
ings of  the  statutory  prohibition.  If  it  does  not  come  within 
every  possible  interpretation  of  the  legislative  language,  the 
accused  must  have  the  benefit  of  the  doubt  under  the  rule 
of  strict  construction.  In  a  statute  which  is  only  ambiguous, 
we  can  thus  avoid  all  possibility  of  raising  the  constitutional 
question  which  I  am  proposing  to  discuss.  If  in  criminal  cases 
such  rules  for  a  strict  construction  do  not  safeguard  the 
liberties  of  citizens,  they  are  convicted  under  judicial  legis- 
lation, and  not  by  "due  process  of  law." 

By  an  uncertain  statute,  as  contradistinguished  from  an 
ambiguous  one,  I  mean  a  statute  which  is  uncertain  because 
incomplete  in  its  description  of  the  artificial  rights  created  by 
it,  or  the  act  which  it  proposes  to  punish.  Thus  an  uncertain 
statute  is  one  which,  when  applied  to  undisputed  facts  of  past 
or  present  existence,  is  incapable  of  any  literal  enforcement,  or 
incapable  of  enforcement  with  absolute  certainty  and  uniform- 
ity of  result,  except  by  the  judicial  addition  of  words,  or  tests, 
which  may  or  may  not  have  been  intended  by  the  legislature,, 
but  which  are  not  unavoidable  implications  from  the  statutory 
language  alone.  It  will  be  contended  that  such  an  uncertainty 
in  a  statute,  creating  an  artificial  right  or  punishment,  makes 
the  enactment  unconstitutional  because  in  its  practical  operation 
and  enforcement  it  unavoidably  involves  ex  post  facto  judicial 
legislation  in  defining  the  crime,  and  therefore  is  not  "due 


358 


RTAT 


STATUTORY   UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

process  of  law/'  and  is  an  arbitrary  government  of  men  and 
not  of  law.12 

UNCERTAINTY   OF    EVIDENCE   AND   OF    LAW    DISTINGUISHED. 

These  generalizations  can  hardly  provoke  much  antago- 
nism. It  therefore  seems  to  me  that  the  difficulty  lies  chiefly  in 
a  clouded  vision  concerning  their  application  to  concrete  facts. 
We  shall  presently  see  how  in  some  instances  it  is  not  at  first 
clear  whether  the  uncertainty  is  inherent  in  the  statute  or  arises 
from  doubt  as  to  the  probative  value  of  the  evidence  adduced 
under  it.  We  must  first  take  notice  of  that  kind  of  uncertainty 
which  arises  because  the  statute  attempts  to  make  guilt  de- 
pend, not  solely  upon  facts  of  present  or  past  existence, 
but  also  requires  a  decision  upon  an  essential  element  of  the 
crime  concerning  speculative  and  problematical  tendencies 
towards  future  results,  of  such  a  character  as  are  undetermin- 
able with  accuracy  and  uniformity  by  the  known  laws  of  the 
physical  universe.  Again  we  must  observe  the  difference  be- 
tween a  doubtful  sufficiency  of  evidence  to  establish  a  fact 
of  past  or  present  existence,  and  which  beyond  all  question 
is  of  a  demonstrable  character,  and  that  other  case  of  doubtful 
sufficiency  of  evidence  to  establish  a  fact,  not  of  past  or  present 
material  actuality,  and  one  which  from  its  very  nature  is 
incapable  of  certain  demonstration,  under  the  known  laws  of 
the  physical  universe,  but  is  by  the  statute  required  to  be 
proven  as  an  element  of  the  crime.  In  the  former  case  the 
uncertainty  of  guilt  or  innocence  is  not  chargeable  to  uncer- 
tainty of  the  statute.  In  the  latter  case  it  is  wholly  due  to 
such  uncertainty,  because  a  conclusion  as  to  the  present  ex- 
istence of  an  unrealized,  non-physical  or  psychologic  tendency, 
is  but  an  unsupported  belief  as  to  the  doubtful  possibility  of  a 
future  doubtful  event.  Where  such  an  uncertainty  inheres  in 
the  statute  itself,  and  is  of  the  essence  of  the  crime  it  attempts 
to  define  (as  is  the  case  with  our  obscenity  statutes  and  the 
judicial  legislation  creating  tests  of  obscenity),  then  in  the 
very  nature  of  things  guilt  must  always  be  determined  by 
surmise,  speculation,  caprice,  emotional  association,  ethical 
sentimentalizing,  moral  idiosyncrasies  or  mere  whim  on  the 
part  of  judges  or  jurors.  Punishment  for  such  a  "crime,"  or 
under  such  a  statute  is  the  arbitrary  deprivation  of  property, 

12As  to  the  requirement  of  certainty  in  laws  creative  of  artificial  civil  rights, 
•ee:  Blanchard  v.  Sprague,  Fed.  Case  No.  1517,  and  cases;  also,  Bittle  v.  Stuart. 
34  Ark.  229-232;  Ferrett  v.  Atwill,  1  Blatchford,  157. 

359 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

or  liberty,  or  both,  according  to  the  aibitrary  dictates  of  men 
not  vested  with  legislative  authority,  and  therefore  is  not  ac- 
cording to  "due  process  of  law." 

UNCERTAINTY    CONCERNING   THE   "OBSCENE." 

In  the  obscenity  statutes  there  is  no  question  of  construing 
involved  verbiage,  but  solely  one  of  defining  the  word  "ob- 
scene." Let  us  first  clearly  understand  what  we  mean  by  a 
"definition."  If  the  word  "water"  had  been  used  in  a  statute, 
every  average  man  would  at  once  translate  that  word  into  the 
same  general  mental  picture.  Every  such  reader  would  prob- 
ably define  the  word  "water"  as  standing  for  a  certain  trans- 
parent, odorless  fluid,  of  the  identical  kind  with  which  he,  and 
every  one  else,  has  had  abundant  experience.  There  never 
would  arise  in  any  man's  mind  any  doubt  as  to  what  concrete 
concept  the  general  word  "water"  symbolized,  even  though  it 
might  become  a  matter  of  inquiry  whether  a  particular  sub- 
stance was  water  or  peroxide  of  hydrogen.  That  doubt  is  not 
as  to  the  meaning  of  the  word,  but  one  concerning  the  past  or 
present  existence  of  the  corresponding  objective  fact;  one  of 
classifying  the  matter  as  water.  When  such  an  issue  has 
arisen  we  do  not  resort  to  a  definition  of  the  word,  for  the  pur- 
pose of  making  certain  what  concept  the  word  "water"  was 
intended  to  convey;  instead,  we  call  in  experts  to  apply  the 
chemical  tests  by  which  the  objective  material,  "water,"  is 
differentiated  from  peroxide  of  hydrogen. 

To  determine  the  classification  of  a  particular  substance 
we  apply  mathematically  exact  and  always  uniform  tests,  not 
created  by  statute  and  not  a  part  of  a  judicial  definition  of 
any  word  used  in  the  statute.  If  such  exact  tests  exist  in  the 
nature  of  things  there  will  be  no  occasion  for  legislatures 
or  courts  to  prescribe  them.  If  they  do  not  exist  in  the  nature 
of  things  perhaps  the  legislature  has  the  right  and  power  to 
create  its  own  artificial  tests  or  definitions,  but  in  a  criminal 
statute  they  must  be  of  equal  certainty  with  the  ascertained 
laws  of  the  physical  universe.  If  neither  science  nor  the 
statute  furnishes  us  with  a  definite  test  by  which  to  determine 
the  existence  of  those  things  expressed  by  statutory  words 
and  which  are  essential  to  a  definition  of  a  crime,  then  the  law 
is  void  for  uncertainty  and  the  lack  of  statutory  tests  of 
criminality  cannot  be  supplied  by  the  courts  since  that  would 
be  judicial  penal  legislation,  and  ex  post  facto  at  that. 

360 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

If  such  tests  were  not  a  matter  of  exact  science,  but  merely 
a  matter  of  speculation,  or  necessary  judicial  creation  in  the 
attempt  to  enforce  such  an  uncertain  law,  then  they  would  be 
unconstitutional  judicial  legislation  and  not  definition  nor 
statutory  interpretation.  Furthermore,  if  such  tests  were  not 
of  mathematical  certainty,  then  the  law  would  be  a  nullity 
because  "where  the  law  is  uncertain,  there  is  no  law."  Let 
us  now  keep  in  mind  the  word  "water"  (in  contrast  with  the 
word  "obscene"),  and  the  character  of  those  differentiating 
tests,  not  of  statutory  origin,  nor  necessarily  implied  in  the 
statutory  words,  but  by  which  we,  as  a  matter  of  physical 
science,  distinguish  the  substances  of  that  for  which  the  words 
stand. 

With  the  foregoing  distinction  in  mind,  I  affirm  that  no 
human  can  define  the  word  "obscene"  so  that  every  reader, 
€ven  with  the  help  of  the  test,  or  definition,  must  receive  there- 
from the  same  concrete  mental  picture.  The  reason  obviously 
is,  that  unlike  the  word  "water,"  the  word  "obscene"  stands 
for  no  particular  concrete  objective  quality,  but  always  and 
ever  stands  for  an  abstraction,  in  which  is  generalized  only 
subjective  states,  associated  with  an  infinite  variety  of  ob- 
jectives, and  therefore  in  the  concrete  it  will  always  have  a 
different  significance  for  every  individual,  according  to  what 
he  has  personally  abstracted,  from  his  peculiar  and  personal 
experience,  and  classified  according  to  his  own  associated 
emotions  of  disapproval,  and  included  within  his  personal 
generalization,  "obscene."  Each  individual  therefore  reaches 
a  judgment  about  obscenity  according  to  his  own  ever-vary- 
ing experiences,  and  the  peculiarly  personal  emotional  associa- 
tions (of  approval  or  disapproval)  which  are  evolved  from 
these,  as  well  as  the  degrees  of  his  sexual  hyperaestheticism. 

From  this  indisputable  fact,  it  follows  that  the  word 
"obscene"  is  indefinable  as  a  matter  of  science  and  the  criminal 
statute,  of  which  that  word  is  an  indispensable  element,  is 
void,  because  "where  the  law  is  uncertain  there  is  no  law,"  and 
no  "due  process  of  law." 

We  must  make  still  clearer,  if  possible,  the  difference  be- 
tween the  uncertainty  of  the  "obscene"  and  other  remotely 
similar  uncertainties.  Some  will  ask,  Is  not  the  uncertainty  of 
the  existence  of  a  special  intent,  which  sometimes  is  made  an 
•-essential  element  of  a  crime,  just  as  uncertain  as  the  unrealized 


361 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

psychologic  tendencies  of  a  book,  which  are  the  judicial  test 
of  its  obscenity?  I  answer  "No!"  The  existence  of  that 
intent  as  to  past  acts  is  in  its  nature  a  demonstrable  fact.  The 
accused,  if  he  would  tell  the  truth,  could  settle  it  beyond  a 
doubt.  Here  the  uncertainty  is  one  of  evidence  not  of  statutory 
tests  of  crime.  An  unrealized  psychologic  potential  tendency 
of  a  book  upon  its  hypothetical  future  reader  has  only  a 
speculative  future  existence,  not  determinable  with  exactness 
by  any  known  law  of  the  physical  universe,  and  therefore  is 
not  a  demonstrable  fact,  but  one  that  we  only  guess  at,  and 
as  to  which  neither  the  accused,  nor  any  one  else,  can  furnish 
certain  information,  nor  have  any  certain  advance  knowledge 
as  to  just  exactly  what  will  induce  the  court  or  jury  to  judge 
it  to  be  criminal.  The  criminal  intent  of  a  man  charged  with 
crime  is  a  fact  which  in  point  of  time  antedates  the  indictment 
and  verdict,  and  has  such  prior  existence  objectively  to  the 
mind  of  the  juror  or  trial  court.  Not  so  with  obscenity.  The 
test  by  which  juries  are  instructed  to  determine  the  existence 
of  "obscenity  "  depends  upon  their  speculation  about  the  psy- 
chologic tendency  of  a  particular  book  upon  a  future  hy- 
pothetical reader,  which  tendency  has  not  yet  become  actualized 
at  the  time  of  indictment  or  trial,  and  which  psychologic  tend- 
ency is  not  known  to  us  to  be  controlled  by  any  exact 
known  law  having  the  immutability  of  the  physical  laws  of 
our  material  universe.  It  follows  that,  unlike  specific  intent, 
which  is  a  demonstrable  fact  of  past  existence  and  objective 
to  the  mind  of  the  court,  the  unrealized  psychologic  tendency 
by  which  a  particular  book  is  judged  "obscene"  has  no  dem- 
onstrable existence  except  as  a  belief  about  a  doubtful  future 
possibility,  and  exists  exclusively  as  a  mere  belief  in  the 
mind  of  the  trial  judge  or  jury,  and  without  any  known  proven 
or  provable  present,  corresponding  objective.  Such  an  uncer- 
tainty is  one  of  law  and  not  of  evidence,  because  it  arises  out 
of  the  fact  that  the  statute  (or  the  judicial  legislation  under 
it  as  to  the  tests  of  obscenity)  predicates  guilt  upon  a  con- 
clusion about  an  undemonstrable  factor  of  speculative  future 
existence. 

No  legislature  has  the  power  to  penalize  travel  in  an  auto- 
mobile at  a  "dangerous  speed,"  and  leave  to  the  trial  court  or 
jury  to  say  in  each  case  whether  the  speed  is  dangerous  or  not. 
What  is  a  "dangerous"  speed  is  a  legitimate  subject  for  the 

362 


STAT 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

exercise  of  legislative  discretion,  and  is  determinable  only  by 
the  legislature,  and  its  authority  cannot  be  delegated  to  the 
varying  judgments  of  varying  juries.  So  likewise  what  is  to 
be  deemed  of  dangerous  moral  tendency  is  a  matter  exclusively 
of  legislative  discretion,  and  must  be  determined  and  definitely 
fixed  by  decisive  definition  of  the  law-enacting  power,  and 
the  formulation  of  tests  cannot  be  delegated  to  the  varying 
judgments  of  varying  courts  or  juries.  Since  the  "obscenity" 
of  a  book  is  not  by  the  statute  defined  to  consist  in  any  of  its 
sense-perceived  qualities  and  since  therefore  the  legislature  has 
not  completed  nor  expressed  its  legislative  discretion  to  de- 
cide what  is  deemed  to  be  of  "dangerous  tendencies,"  and  since 
that  legislative  function  cannot  be  delegated  to  the  jury  or 
judge  to  be  exercised  ex  post  facto  or  otherwise,  it  follows 
that  there  is  no  law  upon  the  subject  and  no  due  process  of 
law  in  any  such  prosecution. 

ON  THE  CERTAINTY  ESSENTIAL  TO  THE  VALIDITY  OF  A 
CRIMINAL  STATUTE  AGAINST  OBSCENITY. 

To  constitute  a  valid  criminal  law  the  statute  under  con- 
sideration must  so  precisely  define  the  distinguishing  char- 
acteristics of  the  prohibited  degree  of  "obscenity"  that  guilt 
may  be  accurately  and  without  doubt  ascertained  by  taking 
the  statutory  description  of  the  penalized  qualities  and  solely 
by  these  determine  their  existence  in  the  physical  attributes  in- 
herent in  the  printed  page.  Judicial  tests  of  "obscenity"  can- 
not be  read  into  the  statutory  words.  Nor  can  official  or 
judicial  speculations  (of  a  character  not  calculated  to  discover 
such  definitely  penalized  physical  qualities  in  the  book),  be 
permitted  so  long  as  they  deal  only  with  a  mere  unrealized 
psychologic  potentiality  for  influencing  in  the  future  some 
mere  hypothetical  person.  Such  speculative  psychologic  ten- 
dencies are  never  found  with  certainty  in  any  book,  but  are 
read  into  it,  with  all  the  uncertainty  of  the  a  priori  method, 
as  an  excuse  for  a  verdict  of  guilty.  Even  if  the  legislative 
body  attempted  to  authorize  such  a  procedure  it  would  be  a 
nullity  under  the  maxim,  "Where  the  law  is  uncertain  there  is 
no  law."  Therefore,  such  procedure  cannot  be  "due  process 
of  law."  An  unrealized  psychologic  tendency  cannot  be  made 
the  differential  test  of  criminality,  even  though  we  should 
admit  that  such  a  tendency  may  properly  appeal  to  the  legis- 
lative discretion  and  may  properly  result  in  penal  laws  wherein 

363 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

the  statutes  and  not  the  courts  specifiy  the  tests,  definite  and 
certain,  by  which  to  determine  what  it  is  that  is  deemed  to 
possess  the  criminal  degree  of  such  dangerous  tendency. 

GENERAL   STATEMENT   AS   TO   THE   REQUIRED   CERTAINTY   OF 
CRIMINAL  STATUTES. 

We  now  come  to  the  contention  that  a  criminal  statute 
cannot  constitute  "due  process  of  law,"  unless  it  is  general, 
uniform,  fixed  and  certain.  These  qualities  are  more  or  less 
related,  since  if  a  law  is  not  fixed  and  certain  it  can  seldom  be 
general  and  uniform  in  its  application.  Now  we  are  specially 
interested  to  get  a  more  condensed  summary  as  to  what  is 
meant  by  the  requirement  of  fixity  and  certainty,  in  a  statute. 

Our  claim  is  that  a  criminal  statute,  to  constitute  "due 
process  of  law,"  must  define  the  crime  in  terms  so  plain,  and 
simple,  as  to  be  within  the  comprehension  of  the  ordinary  citi- 
zen, and  so  exact  in  meaning  as  to  leave  in  him  no  reasonable 
doubt  as  to  what  is  prohibited.  Those  qualities  of  generality, 
uniformity,  and  certainty,  must  arise  as  an  unavoidable  ne- 
cessity out  of  the  very  letter  of  the  definition  framed  by  the 
law-enacting  power,  and  not  come  as  an  incidental  result,  from 
an  accidental  uniformity  in  the  exercise,  by  courts,  of  an  un- 
constitutionally delegated  legislative  discretion.  If  a  statute 
defining  a  crime  is  not  self-explanatory,  but  needs  interpreta- 
tion or  the  interpolation  of  words  or  tests  to  insure  certainty 
of  meaning,  or  because  its  ambiguity  permits  of  more  than 
one  judicial  interpretation,  then  it  is  not  "the  law  of  the  land," 
because  no  such  selected  interpretation  of  the  courts  has  ever 
received  the  necessary  sanction  of  the  three  separate  branches 
of  legislative  power,  whose  members  alone  are  authorized 
and  sworn  to  define  crimes  and  ordain  their  punishment. 
Laws  defining  crimes  are  required  to  be  made  by  the  law- 
making  branch  of  government  because  of  the  necessity  for 
limiting  and  destroying  arbitrariness  and  judicial  discretion  in 
such  matters.  That  is  what  we  mean  when  we  say  ours  is 
a  government  by  law  and  not  by  men.  It  follows  that  it  is 
not  enough  that  uniformity  and  certainty  shall  come  as  the 
product  of  judicial  discretion,  since  "law"  is  necessary  for  the 
very  purpose  of  destroying  such  discretion  in  determining 
what  is  punishable. 


364 


CHAPTER    XX. 

"DUE   PROCESS  OF  LAW"  IN    RELATION  TO 
STATUTORY  UNCERTAINTY  AND      . 
CONSTRUCTIVE  OFFENSES. 

PART  III. 

Historical   Interpretation   of   ' '  Law ' '    in    Relation  to 
Statutory    Certainty™ 

As  I  view  history,  the  evolution  of  organized  government 
toward  liberty,  especially  in  its  relation  to  laws  which  are  penal 
in  character,  is  clearly  divided  into  three  general  stages  of 
tendency.  The  first  of  these  manifests  itself  in  the  effort  to 
restrain  autocratic  sovereigns  and  their  minions  in  the  arbitrari- 
ness of  their  power  to  punish,  by  subjecting  their  wills  and 
penalties  to  the  authority  of  prior  known  rules  or  laws.  The 
second  step  in  this  evolution  toward  liberty  is  to  curtail  the 
authority  of  the  lawmaking  power  as  to  the  manner  of  its 
exercise,  so  that  it  may  not,  even  under  the  forms  of  law, 
violate  that  natural  justice  which  requires  uniformity  of  the 
law  in  its  application  to  all  those  who  in  the  nature  of  things  are 
similarly  situated,  which  uniformity,  of  course,  is  impossible 
unless  the  law  is  certain  in  the  definition  of  what  is  prohibited. 
The  third  tendency  is  marked  by  the  curtailment  of  the  legis- 
lative power  as  to  the  subject  matter  of  its  control,  so  as  to 
conserve  a  larger  human  liberty  by  excluding  certain  conduct 
— and  progressively  an  increasing  quantum  thereof — from  all 
possible  governmental  regulation,  even  by  general,  uniform 
and  certain  laws.  This  should  later  limit  legislation  to  the  pro- 
hibition of  only  such  conduct  as  in  the  nature  of  things  neces- 
sarily involves  an  invasion  of  the  liberty  of  another,  to  his 
material  and  ascertainable  injury.  I  have  no  doubt  it  was  such 
a  government,  of  limited  power  to  regulate  human  affairs,  that 
the  framers  of  American  constitutions  intended  to  establish. 
The  stage  before  the  evolution  above  indicated  we  gener- 

13Revised   from   The  Albany  Law  Journal,  April,   1908. 

365 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

ally  term  a  lawless  government  of  men,  in  contradistinction  to  a 
government  by  men  according  to  law,  and  such  a  government 
of  men  is  always  despotic  and  arbitrary,  although  it  may  at 
times  be  a  relative  benevolent  despotism.  The  first  advance 
means  a  government  by  men  according  to  prior  established 
rules,  which  rules  may  be  as  invasive  and  unjust  as  the  legis- 
lative power  sees  fit  to  make  them.  This  condition  is  aptly 
described  as  tyranny  by  the  laws,  of  which  we  find  many  ex- 
amples all  around  us.  The  second  progressive  stage  is  that 
wherein  men  strive  to  limit  the  exercise  of  the  law-making 
power  so  that  it  may  not,  even  under  the  forms  of  law,  do  vio- 
lence to  that  natural  justice  which  demands  defmiteness  and  uni- 
formity affecting  those  who  are  similarly  accused. 

The  third  stage  wherein  the  legislative  power  is  limited 
to  the  suppression  of  acts  which  are  necessarily,  directly, 
and  immediately,  invasive,  is  aptly  termed  liberty  under  the 
law.  Our  present  stage  of  evolution,  so  far  as  the  leaders 
of  thought  are  concerned,  is  probably  to  be  located  near  the 
beginnings  of  this  stage,  and  in  the  course  of  a  few  thousands 
of  years  we  may  attain  to  something  approximating  real 
liberty  under  the  law;  and  in  another  million  years  we  may 
attain  to  the  Anarchist  ideal,  which  is  liberty  without  law, 
made  possible  because  no  one  has  the  inclination  to  invade 
his  neighbor,  and  all  are  agreed  as  to  what  constitutes  an 
invasion.  The  great  mass  of  Americans,  and  humans  gener- 
ally, are  now  in  that  stage  of  their  development  which  compels 
a  love  of  tyranny  under  the  forms  of  law — a  tyranny  tempered 
only  by  the  discretion  of  the  ignorant,  such  as  know  nothing 
of  liberty  in  the  sense  of  an  acknowledged  claim  of  right  to 
remain  exempt  from  authority. 

The  transition  from  despotism  to  government  by  law  in  its 
earlier  stages  is  marked  by  the  misleading  seemings  of  law, 
which,  however,  are  devoid  of  all  its  essence.  This  is  illus- 
trated in  many  of  the  miscalled  laws  of  the  Russian  Tsar,  and 
also  in  the  Chinese  code,  which  latter  prescribes  a  punishment 
for  all  those  who  shall  be  found  guilty  of  "improper  conduct," 
without  supplying  any  further  criterion  or  test  of  guilt.  Mani- 
festly under  such  authority  the  magistrates  are  justified  in 
punishing  anything  which  whim,  caprice,  or  malice  might 
prompt  them  to  adjudge  "improper."  Accordingly,  we  have 
a  state  of  affairs  wherein  under  the  misleading  appearances  of 

366 


STATUTORY   UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

law  everything  is  condemned,  and  the  arbitrary  will  of  the 
officers  of  the  State  again  creates  the  penalty  instead  of  merely 
enforcing  "the  law"  as  they  find  it.  Thus,  while  observing  the 
outward  forms  and  seemings  of  law,  the  people  are  still  gov- 
erned by  the  mere  despotic  wills  of  officials. 

Upon  the  questions  as  to  what  are  all  the  essentials  of  law, 
and  what  are  the  limits  of  liberty,  we  still  have,  in  the  main, 
very  crude  thinking  and  perhaps  still  more  crude  efforts  to- 
ward generalizations.  So  far  as  my  investigations  have  in- 
formed me,  no  court  has  had  the  confident  clarity  of  vision 
to  even  attempt  the  formulation  of  a  comprehensive  general 
statement  as  to  the  limits  of  liberty  and  governmental  control. 
This  of  course  means  that  our  judges  are  still  in  that  early 
stage  of  their  intellectual  development  wherein  this  branch  of 
the  law  has  not  become  a  science.  However,  it  is  a  most  de- 
plorable state  of  mind  which  too  often  impels  courts  to  confess 
to  the  permanent  intellectual  bankruptcy  of  the  judiciary  by 
asserting  that  such  definitive  generalizations  are  impossible. 

The  present  purpose  is  to  inquire  into  the  historical  ver- 
dict as  to  the  reasons  which  make  law  a  necessity  and  espe- 
cially the  verdict  of  all  lovers  of  liberty  as  to  the  degree  of 
certainty  required  to  make  a  penal  statute  THE  LAW,  and  its 
enforcement  "due  process  of  law."  The  method  will  be  to  ex- 
hibit the  facts  and  the  authoritative  declarations  concerning 
this  question  as  these  appear  in  our  juridical  history.  This 
fragmentary  material  often  includes  very  crude  statements  of 
imperfectly  conceived  principles,  as  well  as  mere  empirical  gen- 
eralizations, but  out  of  it  we  will  later  erect  a  rational  gen- 
eralization, and  this  will  be  done  so  far  as  is  necessary  to  de- 
termine the  degree  of  certainty  required  in  the  law,  as  the 
same  is  formulated  in  penal  statutes. 

I  confess  that  it  seems  to  me  as  though  men  claiming  to 
be  learned  in  the  law  should  be  presumed  to  know  all  that 
follows,  and  yet  it  is  self-evident  that  they  do  not.  I  say 
self-evident,  because  the  fact  is  notorious  that  among  the  many 
uncertain  criminal  statutes  those  only  which  are  directed  against 
"obscene,  indecent,  filthy  or  disgusting"  literature  and  art, 
which  words  are  as  vague  as  a  London  fog,  have  resulted  in 
over  5000  persons  being  deprived  of  life,  liberty,  or  property, 
and  yet  it  seems  hardly  to  have  occurred  to  any  one  connected 
with  these  cases  to  question  the  constitutionality  of  those  laws 

367 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

because  of  their  uncertainty.  Such  facts,  and  numerous 
equally  vague  statutes  and  municipal  ordinances  which  are 
continually  being  enforced,  without  having  their  constitution- 
ality questioned,  demonstrate  that  the  intelligence  of  the  pro- 
fession in  general  has  not  yet  risen  to  the  point  where  there  is 
any  need  to  apologize  for  attempting  to  enlighten  its  members 
concerning  the  constitutional  requirement  of  certainty  in  penal 
statutes. 

EARLY  WRITERS  ON  THE  NECESSITY  OF  LAW. 

John  Adams,  in  "A  Defense  of  the  Constitution  and  Gov- 
ernment of  the  United  States,"  defends  at  some  length  the 
proposition  that  even  under  laws  to  which  all  are  equally  sub- 
ject the  Majority  may  oppress  the  minority.  In  this  connec- 
tion he  speculates  about  the  meaning  and  limits  of  liberty,  in 
the  course  of  which 'discussion  he  quotes  from  numerous  old 
authors  about  the  necessity  of  a  government  according  to 
law  to  prevent  the  tyranny  of  arbitrary  punishments  by  the 
magistrate.  I  will  now  reproduce  some  of  Mr.  Adams'  quota- 
tions and  speculations,  asking  the  reader  as  he  scans  these 
quotations  concerning  the  necessity  for  having  princes  and 
judges  govern  according  to  law,  always  to  bear  in  mind  the 
essential  nature  of  the  law,  in  contradistinction  to  arbitrary 
edicts. 

"It  is  weakness  rather  than  wickedness  which  renders  men 
unfit  to  be  trusted  with  unlimited  power.  *  *  *  Junius 
says :  'Laws  are  intended,  not  to  trust  to  what  men  will  do,  but 
to  guard  against  what  they  may  do.'  Aristotle  says  that  'A 
government  where  the  Laws  alone  should  prevail,  would  be 
the  kingdom  of  God.'  This  indeed  shows  that  this  great  phi- 
losopher had  much  admiration  for  such  a  government.  Aris- 
totle says,  too,  in  another  place,  'Order  is  law,  and  it  is  more 
proper  that  law  should  govern,  than  any  one  of  the  citizens ; 
upon  the  same  principal,  if  it  is  advantageous  to  place  the 
supreme  power  in  some  particular  persons,  they  should  be 
appointed  to  be  only  guardians,  and  the  servants  of  the  laws/ 
These  two  are  very  just  sentiments,  but  not  a  formal  defini- 
tion of  liberty.  Livy,  too,  speaks  of  happy,  prosperous,  and 
glorious  times,  when  'Imperia  legum  potentiora  fuerant  quan 
hominum.'  But  he  nowhere  says  that  liberty  consists  in  being 
subject  only  to  the  legum  imperio.  Sidney  says,  'No  sedition 
was  hurtful  to  Rome,  'until  through  their  prosperity  some 

368 


STATUTORY   UNCERTAINTY   AND  CONSTRUCTIVE  OFFENSES. 

men  gained  a  power  above  the  laws/  In  another  place  he  tells 
us  too,  from  Livy,  that  some,  whose  ambition  and  avarice 
were  impatient  of  restraint,  complained  that  'leges  rem  surdam 
esse,  inexorabilem,  salubriorem  inopi  quam  potenti.'  And  in  an- 
other that  no  government  was  thought  to  be  well  constituted 
'unless  the  laws  prevailed  against  the  commands  of  men.'  But 
he  has  nowhere  defined  liberty  to  be  subjection  to  the  laws 
only.  Harrington  says,  'Government  de  jure,  or  according  to 
ancient  prudence,  is  an  art,  whereby  a  civil  society  of  men  is 
instituted  and  preserved  upon  the  foundation  of  common  in- 
terest, or,  to  follow  Aristotle,  and  Livy,  it  is  an  empire  of 
laws  and  not  of  men.'  And  government,  to  define  it  according 
to  modern  prudence,  or  de  facto,  is  an  art,  by  which  some 
man,  or  some  few  men,  subject  a  city  or  a  nation,  and  rule  it 
according  to  his  or  their  private  interest,  which,  because  the 
laws  in  such  cases  are  made  according  to  the  interest  of  a 
man,  or  a  few  families,  may  be  said  to  be  the  empire  of  man, 
and  not  of  laws.  Sidney  says,  'Liberty  consists  solely  in  an  in- 
dependency on  [of]  the  will  of  another,  and,  by  a  slave,  we 
understand  a  man  who  can  neither  dispose  of  his  person  or 
goods,  but  enjoys  all  at  the  will  of  his  master.'  And  again, 
'As  liberty  consists  only  in  being  subject  to  no  man's  will  and 
nothing  denotes  a  slave  but  a  dependence  upon  the  will  of 
another;  if  there  be  no  other  law  in  a  kingdom  but  the  will  of 
a  prince  [or  of  the  judiciary]  there  is  no  such  thing  as 
liberty !'  "14 

It  appears  sufficiently  evident  from  these  past  contentions 
for  liberty  that  the  necessity  for  statutes  in  criminal  cases 
arises  out  of  the  necessity  for  strengthening  the  weakness  and 
curbing  the  passions  of  judges,  who,  according  to  all  experi- 
ences and  while  remaining  human,  cannot  be  safely  trusted 
with  arbitrary  power  to  determine  what  shall  be  punishable. 
Since  such  are  the  reasons  uniformly  assigned  by  the  older 
philosophers  for  their  insistence  upon  subjecting  the  will  of 
judges  to  law,  it  follows  that  criminal  statutes  fall  short 
of  satisfying  the  demand  for  law,  if  by  their  uncertainty  they 
compel,  or  permit,  judges  to  exercise  a  discretion  in  framing 
tests  of  criminality  such  as  are  not  specifically  written  into  the 
very  words  of  the  penal  code. 

Let  us  now  briefly  trace  these  same  influences  in  the  origin 
of  Magna  Charta  and  the  English  conception  of  "the  law  of 

14"A  Defense  of  the  Constitution,"  etc.,  letter  XXVI  in  Vol.  1. 

369 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

the  land."  This  of  course  is  re-stated,  without  being  altered, 
in  our  American  constitutional  guarantee  of  "due  process  of 
law."  A  little  farther  on  we  consider  the  later  unfoldment  of 
the  judicial  interpretation  of  "law." 

MAGNA  CHARTA  AND  "THE  LAW  OF  THE  LAND/' 

The  ancient  prohibition  against  an  infliction  of  penalties 
"without  due  process  of  law,"  or,  what  usually  amounts  to 
the  same  thing,  those  inflicted  under  "ex  post  facto  laws,"  or 
for  mere  constructive  injuries  or  crime,  was  the  most  es- 
sential and  fundamental  guarantee  of  an  Englishman's  liberty. 

King  John,  we  are  told,  filled  his  coffers  by  confiscation  and 
cruel  extortions.  He  invited  dignitaries  to  London,  then  de- 
clared them  prisoners  until  they  should  pay  large  fines.  These 
penalties  were  not  inflicted  for  offenses  against  any  general 
or  prior  known  laws,  such  that  with  certainty  could  have 
informed  the  citizens  in  advance  that  their  conduct  was  illegal, 
or  warn  them  of  the  penalty  thereof.  "Liberty  of  all  kinds  was 
vendible  in  the  reign  of  John"  precisely  because  there  was  no 
law,  in  the  sense  of  general  rules  with  undoubted  certainty  of 
meaning,  to  define  the  limits  of  liberty  or  furnish  a  refuge  of 
defense  for  the  citizen  in  the  exercise  of  his  liberty,  or  to  cur- 
tail the  arbitrary  power  of  a  tyrant  King,  or  his  judiciary. 

To  prevent  this  lawlessness  of  official  power  as  exemplified 
in  the  arbitrary  infliction  of  penalties,  the  barons  by  force 
exacted  the  Magna  Charta.  In  that  document,  as  confirmed  by 
Henry  the  III  and  Edward  I,  we  find  it  stated  that  "No 
free-man  shall  be  taken  or  imprisoned  or  disseized  of  his 
freehold  or  liberties,  *  *  *  but  by  lawful  judgment  of 
his  peers  or  by  the  law  of  the  land."15  If  read  in  the  light  of 
the  historical  facts  which  brought  this  into  being,  it  is  manifest 
that  the  primal  purpose  of  all  this  was  that  no  man  might  be 
deprived  of  his  property  or  liberty  or  be  tricked  into  criminal- 
ity by  any  unknown  or  uncertain  rules,  such  as  would  not 
warn  him  in  advance,  and  with  unerring  certainty,  that  his 
conduct  was  prohibited. 

The  Magna  Charta  required  only  that  criminal  statutes 
should  be  certain  and  general.  It  did  not  yet  by  its  strict  letter 
prevent  their  being  made  so  after  the  fact  charged  as  crime, 
if  the  King  and  Parliament  saw  fit  then  to  prescribe  a  punish- 

"Chap.  29  Magna  Charta. 

370 


UTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 


ment.  This  furnished  the  opportunity  for  shifty  tyrants  to 
evade  the  spirit  of  Magna  Charta,  and  they  did  it.  In  the  25th 
Edward  III,  a  law  provided  thus:  "It  is  accorded,  that  if  any 
case,  supposed  treason,  which  is  not  above  specified,  doeth 
happen  before  any  justices,  the  justices  shall  tarry  without 
any  going  to  judgment  of  the  treason,  till  the  cause  be  showed 
and  declared  before  the  King  and  his  Parliament  whether  it 
ought  to  be  judged  treason  or  other  felony."16  Thus  tyrants 
kept  the  letter  of  the  "due  process  of  law"  provision  of  Magna 
Charta,  and  yet  accomplished  quite  effectively  the  repudiation 
of  its  spirit  and  of  the  very  essence  of  law,  and  thus  they  again 
successfully  destroyed  liberty.  From  such  circumstances  grew 
the  demand  which  resulted  in  a  charter-prohibition  against 
ex  post  facto  laws. 

However,  the  tyrants  are  always  fertile  in  the  evasion  of 
charters  and  constitutions,  such  as  are  intended  to  limit  their 
arbitrary  power  and  correspondingly  to  protect  the  citizen 
against  official  invasion.  So  next  we  find  men  imprisoned 
under  the  authority  of  a  special  royal  commission,  which  im- 
plied a  process  similar  to  our  present  occasional  executive 
legislation.  There  were  not  wanting  Judges  who,  impelled 
by  a  lust  for  power  or  even  more  base  motives,  were  ready  to 
affirm  the  validity  of  such  evasions  of  the  English  Charters 
of  Liberty,  by  the  judicial  engraftment  of  exceptions,  called 
"martial  law."  And  so  it  became  necessary  to  make  English 
liberties  more  safe,  by  perfecting  the  Writ  of  Habeas  Corpus, 
and  securing  the  re-affirmance  of  the  former  safeguards  of 
liberty.  In  all  of  the  English  charters  of  liberty,  and  their 
various  re-affirmations,  one  principle  is  always  discernable 
in  the  use  of  such  words  as  "due  process  of  law,"  and  the 
"law  of  the  land."  It  was  not  the  purpose  to  change  the 
person  of  the  despot,  or  to  transfer  despotic  power  from  an 
autocrat  to  the  judiciary;  neither  was  it  intended  merely  to 
influence  those  vested  with  despotic  power  to  change  the 
mode  of  exercising  their  discretion  under  it.  On  the  contrary, 
the  plain  purpose  was  to  destroy  the  discretion  itself,  so  as,  at 
the  trial  of  an  accused,  to  preclude  every  possibility  of  an 
arbitrary  judicial  determination  as  to  what  should  be  the 
criminal  statutes  as  applied  to  his  acts.  All  along  the  history 
of  these  stormy  times,  it  is  made  plain  that  the  charter  phrases, 
for  the  protection  of  liberty,  were  designed  to  mean  that  no 

"English  Liberties  64. 

371 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

man  should  be  deprived  of  liberty  or  property  except  by  2 
prior,  duly  enacted,  publicly  promulgated  law,  which  to  be 
"laiv"  must  be  general  in  terms,  equal  in  its  application  to  all 
who  in  the  nature  of  things  are  similarly  situated,  and  to  ac- 
complish this  it  must  be  so  certain  as  to  its  meaning  that  no 
man  of  ordinary  intelligence  could  be  misled  by  it.    The  mani- 
fest intention  was  to  safeguard  liberty,  against  every  arbitrary 
determination  of  guilt,  in  a  manner  that  could  not  be  realized 
if  an  enactment  should  lack  any  of  these  qualities,  and  in  con- 
sequence we  must  say  that  a  conviction  under  such  statute 
would  not  be  according  to  the  law,  and  therefore  would  not  be 
within  Magna  Charta  or  our  own  constitutionally  guaranteed 
"due  process  of  law."    If  a  statute  defines  a  crime  in  uncertain 
terms,  a  judge  who,  under  the  pretext  of  construing  it,  should 
attempt  to  supply  the  absent  but  necessary  certainty  of  mean- 
ing, through  judicially  created  tests  of  criminality,  then,  as  to 
the  person  on  trial,  such  a  judge  would  be  enacting  an  ex  post 
facto  law.     If  such  judicial  legislation  should  thereafter  be 
uniform  in  all  subsequent  cases,  the  uniformity  would  still  be  a 
matter  of  accidental  uniformity  in  the  exercise  of  arbitrary 
judicial  legislation,  and  not  a  compulsory  uniformity  imposed 
by  definite  and  certain  legislative  enactment.    Even  under  uni- 
formity of  judicial  legislation  there  would  still  be  the  absence 
of  that  unavoidable  uniformity  which  should  result  from  sub- 
jecting the  judicial  will  to  the  certainty  of  a  statute  and  which 
compulsory  conformity  is  an  indispensable    requirement    of 
"law,"  and  of  "due  process  of  law."    Now  let  as  inquire  how 
far  this  interpretation  of  the  historical  events  harmonizes  with 
the  views  of  the  early  writers,  interpreting  the  charter  phrases 
which  were  incorporated  into  our  constitution.    Here  let  it  be 
remembered  that  our  constitutional  guarantee  of  "due  process 
of  law"  was  adopted  after  most  of  the  following  construction 
had  been  placed  upon  the  word  "law,"  and  probably  because  of 
these  constructions. 


"Every  law  may  be  said  to  consist  of  several  parts :  One 
declaratory,  whereby  the  right  to  be  observed,  and  the  wrong 
to  be  eschewed,  are  clearly  defined  and  laid  down."" 

Although  there  is  much  in  Montesquieu's  "Spirit  of  the 

"Blackstone  in  his  Introduction,   Book  1,  p.  5S. 

372 


STATUTORY   UNCERTAINTY   AND   CONSTRUCTIVE   OFFENSES. 

Laws"  that  we  have  outgrown,  yet  he  was  the  precursor  of 
most  that  is  good  in  modern  political  institutions,  and,  as  it 
appears  by  the  frequent  references  to  him  in  The  Federalist, 
his  book  did  mucli  to  shape  our  own  constitution.  It  is  nearly 
two  centuries  since  he  wrote : 

"Under  moderate  governments,  the  law  is  prudent  in  all 
its  parts,  and  perfectly  well  knozvn,  so  that  even  the  pettiest 
magistrates  are  capable  of  following  it.  But  in  a  despotic 
state,  where  the  prince's  will  is  the  law ;  though  the  prince  were 
wise,  yet  how  could  the  magistrate  follow  a  will  he  does  not 
know?  He  must  certainly  follow  his  own.18  In  despotic 
governments  there  are  no  laws,  the  judge  himself  is  his  own 
rule."19 

The  following  words,  also  from  Montesquieu,  show  what 
the  contest  for  certainty  of  the  law  meant  with  special  refer- 
ence to  intellectual  crimes,  and,  with  a  very  few  verbal  changes, 
will  be  seen  to  bear  with  unusual  force  against  the  validity 
of  our  present  obscenity  laws.  He  said :  "Nothing  renders  the 
crime  of  high  treason  [and  we  may  add  obscenity]  more  arbi- 
trary than  declaring  people  guilty  of  it  for  indiscreet  speeches. 
Speech  is  so  subject  to  interpretation;  there  is  so  great  a 
difference  between  indiscretion  and  malice ;  and  frequently  little 
is  there  of  the  latter  in  the  freedom  of  expression,  that  the  law 
can  hardly  subject  people  to  a  capital  punishment  for  words 
unless  it  expressly  declares  what  words  they  are.  Words  do 
not  constitute  an  overt  act;  they  remain  only  in  idea.  When 
considered  by  themselves,  they  have  generally  no  determinate 
signification,  for  this  depends  on  the  tone  in  which  they  are 
uttered.  It  often  happens  that  in  repeating  the  same  words 
they  have  not  the  same  meaning;  this  depends  on  their  con- 
nection with  other  things,  and  sometimes  more  is  signified  by 
silence  then  by  any  expression  whatever.  Since  there  can  be 
nothing  so  equivocal  and  ambiguous  as  all  this,  how  is  it 
possible  to  convert  it  into  a  crime  of  high  treason?  Wher- 
ever this  law  is  established,  there  is  an  end  not  only  of  libertyf 
but  ever  of  its  very  shadow/'30  Italics  are  mine,  usually,  in 
,all  these  quotations,  T.  S. 

Beccaria,  who  profited  by  studying  Montesquieu,  also  elab- 

"Aldine  Edition,  Vol.  88,  p.  79. 

"Vol.  1  Aldine  Edition,  p.  19. 

*>The   Spirit  of  the  Law,  v.   1,  p.  282,   Aldine  Edition. 

373 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

orates  this  theme  of  the  necessity  of  certainty  of  law  as  a 
condition  of  liberty.  In  part  he  wrote  as  follows: 

"Judges,  in  criminal  cases,  have  no  right  to  interpret  the 
penal  laws,  because  they  are  not  legislators.  They  have  not 
received  the  laws  from  our  ancestors  as  a  domestic  tradition,  or 
as  the  will  of  a  testator,  which  his  heirs,  and  executors,  are  to 
obey;  but  they  receive  them  from  a  society  actually  existing, 
or  from  the  sovereign,  its  representative.  *  *  *  There  is 
nothing  more  dangerous  than  the  common  axiom:  The  spirit 
of  the  laws  is  to  be  considered.  To  adopt  it  is  to  give  way  to 
the  torrent  of  opinions.  This  may  seem  a  paradox  to  vulgar 
minds,  which  are  more  strongly  affected  by  the  smallest  dis- 
order before  their  eyes,  than  by  the  most  pernicious,  though 
remote,  consequence  produced  by  one  false  principle  adopted 
by  a  nation.  When  the  rule  of  right  zvhich  ought  to  direct  the 
actions  of  the  philosophers,  as  well  as  the  ignorant,  is  a  matter 
of  controversy,  not  of  fact,  the  people  are  slaves  to  the  magis- 
trate. If  the  poiver  of  interpreting  laws  be  an  evil,  obscurity 
in  them  must  be  another,  as  the  former  is  the  consequence  of 
the  latter.  This  evil  will  be  still  greater  if  the  laws  be  written 
in  a  language  unknown  to  the  people;  who,  being  ignorant 
of  the  consequences  of  their  own  actions,  become  necessarily 
dependent  on  a  few,  who  are  interpreters  of  the  laws,  which 
instead  of  being  public,  and  general,  are  thus  rendered  private 
and  particular.  If  this  magistrate  should  act  in  an  arbitrary 
manner,  and  not  in  conformity  to  the  code  of  laws,  which 
ought  to  be  in  the  hands  of  every  member  of  the  community, 
he  opens  a  door  to  tyranny,  which  always  surrounds  the  con- 
fines of  political  liberty.  I  do  not  know  of  any  exception  to 
this  general  axiom,  that  every  member  of  society  should 
know  when  he  is  criminal,  and  when  innocent.  If  censors,  and, 
in  general,  arbitrary  magistrates,  be  necessary  in  any  govern- 
ment, it  proceeds  from  some  fault  in  the  constitution.  The 
uncertainty  of  crimes  hath  sacrificed  more  victims  to  secret 
tyranny  than  have  ever  suffered  by  public  and  solemn  cruelty. 

"No  Magistrate  then  (as  he  is  one  of  the  society)  can, 
with  justice,  inflict  on  any  other  member  of  the  same  society 
punishment  that  is  not  ordained  by  law.  Judges  in  criminal 
cases  have  no  right  to  interpret  the  penal  laws,  because  they 
are  not  legislators.  Who  then  is  their  lawful  interpreter?  The 
sovereign  that  is  the  representative  of  society,  and  not  the 


374 


STATUTORY    UNCERTAINTY   AND   CONSTRUCTIVE   OFFENSES. 


judge,  whose  office  is  only  to  examine  if  a  man  have  or  have 
not  committed  an  action  contrary  to  the  law."21 

An  American  commentator  writing  before  the  Revolution 
defines  "The  law  of  the  land"  to  mean,  By  the  common  law 
or  by  the  statute  law,  by  the  due  course  and  process  of  law. 
He  quotes  Lord  Coke  as  thus  interpreting  the  clause  in  ques- 
tion, "the  law  is  the  surest  sanctuary  that  a  man  can  take,  and 
the  strongest  fortress  to  protect  the  weakest  of  all.  *  *  * 
No  man  is  deceived  while  the  law  is  his  buckler.  *  *  * 
The  law  is  called  right  because  it  discovereth  that  which  is 
crooked  or  wrong;  for  as  right  signifieth  law,  so  crooked  or 
wrong  signifieth  injuries;  injury  is  against  right.  A  right 
line  is  both  declaratory  of  itself  and  the  oblique.  Hereby  the 
crooked  chord  of  that  which  is  called  discretion  appeareth  to 
be  unlawful,  unless  you  take  it  as  it  ought  to  be,  discreti  est 
discerne  per  legern,  quid  sit  justum — discretion  is  to  dis- 
cern by  the  law  what  is  just."22 

"It  is  the  function  of  a  judge  not  to  make  but  to  declare 
the  law  according  to  the  golden  metewand  of  the  law,  and  not 
by  the  crooked  cord  of  discretion."  Coke. 

It  must  be  apparent  from  this  conception  of  "law"  that 
under  "due  process  of  law"  as  used  in  the  English  charters 
and  defined  before  the  days  of  our  constitution,  and  with  such 
interpretation  incorporated  into  these  constitutions,  no  man 
can  be  deprived  of  property  or  liberty  for  acts  made  criminal, 
by  any  exercise  of  power,  which  seeks  to  invest  either  judges 
or  juries,  either  directly  or  indirectly,  with  a  discretion  to 
determine  whether  or  not  any  undisputed  act  shall  be  penalized ; 
but,  on  the  contrary,  the  very  essence  of  "law"  in  "due  process 
of  law,"  in  criminal  cases  at  least,  is  that  all  such  discretion 
shall  be  destroyed  by  the  very  explicitness  of  the  law  itself f 
and  that  all  juridical  discretion  shall  be  limited  to  discovering 
the  facts  and  discerning  solely  from  the  letter  of  the  law 
whether  these  ascertained  facts  constitute  a  crime.  Only  thus 
can  statutes  curb  the  tyranny  of  arbitrary  judicial  power. 
Here  is  another  authoritative  statement  as  to  the  requirement  of 
the  law,  which  again  is  a  prerevolutionary  authority,  in  the 
light  of  which  our  constitutional  phrase  must  have  been 
adopted. 

MAn  Essay  on  Crimes  and  their  Punishment.      (Edition   of  1775)   pp.   12-41. 
"English  Liberties,  by  Henry  Carr  and  William  Nelson,  pp.  21  to  27.     Provi- 
dence,   R.    I.,   1774.)    2    Coke's    Institutes,   marginal   page   56. 

375 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

"It  is  further  essential  to  political  freedom  that  the  laws 
be  clearly  obvious  to  common  understanding,  and  fully  notified 
to  the  people.  *  *  *  When  the  people  first  learn  the  law 
by  fatal  experience,  they  feel  as  if  the  judge  was  in  effect 
legislator,  and  as  if  life  and  liberty  were  subjected  to  arbitrary 
control.  *  *  *  The  same  will  be  the  consequences  where 
the  law  is  imperfectly  and  indefinitely  expressed.  The  style 
thereof  should  be  clear,  and  as  concise  as  is  consistent  with 
clearness ;  general  terms  also  should  be  particularly  avoided, 
as  liable  to  become  the  instruments  of  oppression.  Under 
the  Act  14  Geo.  11  c.  6,  stealing  sheep  (or  other  cattle'  was 
made  felony  without  benefit  of  clergy ;  but  those  general  words 
'or  other  cattle'  being  considered  as  too  vague  to  create  a 
capital  offense,  the  act  was  properly  holden  to  extend  only  to 
sheep."23 

That  judicial  interpretation  of  "Law"  just  quoted  was 
adopted  into  our  constitutional  guarantee  of  "Due  Process  of 
law,"  and,  measured  by  that  standard,  all  uncertain  criminal 
statutes  must  be  annulled  because  not  "Law"  and  not  consti- 
tuting "due  process  of  law." 

In  the  debates  of  the  English  Parliament  frequent  refer- 
ences can  be  found  in  which  certainty  of  the  law  is  advocated. 
(See  4  Parliamentary  History,  pp.  115-117-118  for  illustra- 
tions). In  1792  (Stat.  32  Geo.  HI,  c.  60)  was  passed  the  act 
which  in  cases  of  criminal  libel  made  the  jury  the  judge  of  both 
law  and  fact.  Before  this  (in  1784)  an  English  court  de- 
nounced uncertainty  of  the  law  of  libels  or  its  administration  in 
no  uncertain  terms.  Here  is  the  language  officially  reported. 

"Miserable  is  the  condition  of  individuals,  dangerous  is 
the  condition  of  the  state,  if  there  is  no  certain  law,  (or  which 
is  the  same  thing)  no  certain  adminstration  of  law,  to  protect 
individuals  or  to  guard  the  state.  *  *  *  Under  such  an 
administration  of  the  law  no  man  could  tell,  no  counsel  could 
advise,  whether  a  paper  were  or  zvere  not  punishable.  I  am 
glad  that  I  am  not  bound  to  subscribe  to  such  an  absurity, 
such  a  solecism  in  politics."26 

If  the  English  courts  have  not  so  uniformly  ignored  un- 
certain statutes  as  might  be  desired,  the  explanation  may  per- 
haps be  found  in  the  fact  that  Magna  Charta  is  a  limitation 
upon  only  the  sovereign,  and  not  upon  Parliament,  in  the  sense 

MLord   Auckland's   Principles   of  Penal   Law.     pp.    312-314    (1771). 
"King  T.   Dean   of  St.   Asaph,  3   Terms   Rep.   431.    (1784) 

376 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

in  which  our  American  constitutions  operate  to  limit  legis- 
lative power.  If  therefore  English  courts,  because  of  uncer- 
tainty, are  to  annul  an  enactment  of  Parliament,  the  justifica- 
tion therefore  can  be  found  only  in  the  very  nature  of  their 
institutions,  without  any  fundamental  written  authority  mak- 
ing such  natural  law  a  limitation  upon  legislative  power. 

Erskine,  although  he  did  not  believe  in  an  unabridged 
freedom  of  speech,  did  believe  in  more  such  liberty  than  was 
current  in  his  time,  and  he  did  believe  in  "Law"  in  the  true 
sense.  I  think  it  worth  while  in  this  connection  to  quote  a  few 
paragraphs  from  his  speech  in  defense  of  Lord  George  Gordon, 
.as  illustrating  his  view  of  the  point  now  under  discussion.  He 
said  : 

"In  nothing  [else]  is  the  wisdom  and  justice  of  our  laws  so 
strongly  and  eminently  manifested,  as  in  the  rigid,  accurate, 
cautious,  explicit,  unequivocal  definition  of  what  shall  con- 
stitute this  offense.  *  *  * 

"If  treason,  where  the  government  itself  is  directly  offend- 
ed, were  left  to  the  judgment  of  its  ministers,  without  any 
boundaries — nay,  without  the  most  broad,  distinct  and  invio- 
lable boundaries  marked  out  by  law — there  could  be  no  public 
freedom — and  the  condition  of  an  Englishman  would  be  no 
better  than  a  slave's  at  the  foot  of  a  Sultan;  since  there  is 
little  difference  whether  a  man  dies  by  the  stroke  of  a  sabre, 
without  the  forms  of  a  trial,  or  by  the  most  pompous  cere- 
monies of  justice,  if  the  crime  could  be  made  at  pleasure  by 
the  state  to  fit  the  fact  that  was  to  be  tried.  *  *  * 

"A  long  list  of  new  treasons,  accumulated  in  the  wretched 
reign  of  Richard  the  Second,  from  which  (to  use  the  language 
of  the  act  that  repealed  them)  'No  man  knew  what  to  do  or 
say  for  doubt  of  the  pains  of  death,'  were  swept  away  in  the 
first  year  of  Henry  the  Fourth,  his  successor ;  and  many  more, 
which  had  again  sprung  up  in  the  following  distracted  arbitrary 
reigns.  *  *  * 

"This  wise  restriction  [against  arbitrary  judicial  deter- 
mination of  what  shall  be  treason]  has  been  the  subject  of 
much  just  eulogium  by  all  the  most  celebrated  writers  on  the 
criminal  law  of  England.  Lord  Coke  says,  'The  Parliament 
that  made  it  was  on  that  account  called  Benedictum  or  Blessed' ; 
and  the  learned  and  virtuous  Judge  Hale,  a  bitter  enemy  and 
•opposer  of  constructive  treasons,  speaks  of  this  sacred  institu- 

377 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

tion  with  that  enthusiasm  which  it  cannot  but  inspire  in  the 
breast  of  every  lover  of  the  just  privileges  of  mankind." 

Again  in  his  argument  insisting  on  the  definiteness  of  the 
law,  he  contends  that  it  shall  "be  extended  by  no  new  or  occa- 
sional constructions — to  be  strained  by  no  fancied  analogies — 
to  be  measured  by  no  rules  of  political  expediency — to  be 
judged  by  no  theory — to  be  determined  by  the  wisdom  of 
no  individual,  however  wise — but  to  be  expounded  by  the 
simple  genuine  LETTER  of  the  law."26 

Although  Erskine  lauded  the  certainty  of  the  statute,  and 
no  doubt  thought  it  at  least  certain  enough  to  preclude  the 
conviction  of  his  client,  Lord  Gordon,  we  still  find  an  abundance 
of  complaint,  after  his  time.  Here  is  a  sample  taken  from  a 
protest  of  the  Peers  in  1819.  "The  offense  of  publishing  a  libel 
is,  more  than  any  other  that  is  known  to  our  law,  undefined 
and  uncertain.  Publications  which  at  one  time  may  be  con- 
sidered innocent  and  even  laudible  may  at  another,  according 
to  circumstances  and  the  different  view  of  public  accusers,  of 
judges  and  of  juries,  be  thought  to  be  deserving  of  punishment, 
and  thus  the  author  or  publisher  of  any  writing  dictated  by  the 
purest  intentions  on  a  matter  of  public  interest,  without  any 
example  to  warn,  any  definition  to  instruct,  or  any  authority 
to  guide  him,  may  expose  himself  to  a  long  imprisonment  and 
a  heavy  fine."27 

THE  MAXIM  REQUIRING  CERTAINTY. 

From  such  solicitude  for  that  liberty  which  ever  depends 
upon  the  certainty  of  meaning  in  the  criminal  statute  came 
the  ancient  maxim:  Ubi  jus  incertum,  ibi  jus  nullum — 
"Where  the  law  is  uncertain,  there  is  no  law."28 

Here  it  is  important  that  we  examine  a  little  further  into 
the  importance  of  maxims  in  general  and  this  last  one  quoted 
in  particular:  "All  great  judges  and  writers  have  been  led  by 
maxims.  *  *  *  Where  the  maxims  lead  and  illumine 
the  great  ends  of  jurisprudence  have  been  advanced;  constitu- 
tions and  their  implications  have  been  respected.  Judges  who 
understand,  respect  and  cite  maxims,  save  great  principles  from 
clouds  of  doubt  and  miserable  equivocation.  *  *  *  No- 
thing more  greatly  obstructs  usurpation,  abuse  of  power,  and 
arbitrariness  in  its  edicts  than  do  maxims.  *  *  *  All 

28Erskine's  Speeches,  Vol.   1,  pp.  72  to  78.     Edition  of  1810. 
"41  Parl.  Deb.  747. 

^Black's  Law  Dictionary,  p.  1196;  Bouvier's  Law  Dictionary,  Rawl's  Re- 
vision v.  2,  p.  381. 

373 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

of  the  admittedly  authentic  maxims  are  expressions  of  mercy, 
reason  and  moderation,  and  are  often  highly  Christain  in 
spirit  and  suggestion.  Lovers  of  liberty  consecrate  the  max- 
ims, oppressors  desecrate  them.  *  *  *  Maxims  are  the 
condensed  good  sense  of  all  nations.  They  are  the  essence  of 
wisdom  in  all  ages.  Whenever  the  law  is  the  perfection  of  rea- 
son, they  are  not  excluded  but  they  must  necessarily  be  in- 
cluded. Jurisprudence  can  lay  claim  to  no  other  element  so 
lustrous,  so  illuminating  and  attractive,  as  its  great  fundamental 
maxims."29 

Upon  the  subject  of  the  particular  maxim  with  which  we 
are  now  concerned,  namely  "where  the  law  is  uncertain,  there 
is  no  law,"  Mr.  Hughes,  among  other  things,  has  this  to  say, 
all  of  which  is  applicable  to  our  present  judicially  enacted 
tests  of  the  "obscene,  indecent,  filthy  and  disgusting"  litera- 
ture and  art. 

"Where  the  rule  is  alternating,  as  antipathy  or  affection, 
caprice  or  whim  dictates,  there  is  no  law.  And  so  it  is  where 
for  one  the  foundation  for  a  judgment  must  be  one  kind  of 
matter,  and  for  another,  a  different.  Where  for  one  there 
must  be  allegations  and  proofs  and  for  another  anything,  even 
palpably  sham  and  false  statements." 

Concerning  jurisprudence,  he  says  :  "Its  value  depends  on 
a  fixed  and  uniform  rule  of  action.  *  *  *  If  water  at  one 
time  would  extinguish  fire  and  at  another  would  spread  a  con- 
flagration; if  on  one  day  it  would  bring  life  and  the  next 
death,  its  value  would  be  destroyed.  *  *  *  And  so  it  is  in 
language,  when  words  have  no  fixed  meaning.  *  *  * 
Those  who  rule  in  disregard  of  obligation  and  reason,  may  be 
likened  to  the  sailor  who  bores  a  hole  in  the  ship  upon  which 
the  safety  of  all  depends."30 

POST-REVOLUTIONARY  DISCUSSION  ON  REQUIREMENTS  OF  THE  LAW 

Alexander  Hamilton  in  discussing  this  subject,  among 
other  things  wrote :  "I  agree  [with  Montesquieu]  that  there  is 
no  liberty  if  the  power  of  judging  be  not  separated  from  the  leg- 
islative and  executive  powers,  [p.  484.]  To  avoid  an  arbi- 
trary discretion  in  the  courts,  it  is  indispensable  that  they  should 
be  bound  down  by  strict  rules  and  precedents,  which  serve  to 
define  and  point  out  their  duty  in  every  particular  case  that 

"Hughes  on  Procedure  v.  2,  pp.  1003-1007;  see  also,  Coke  on  Littleton,  11,. 
a,  (marginal). 

30Hughes  on  Procedure,  v.  2,  p.  1237. 

379 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

•comes  before  them ;  *  *  *  The  creation  of  crimes  after 
the  commission  of  the  fact,  or,  in  other  words,  the  subjecting 
of  men  to  punishment  for  things  which,  when  they  were  done, 
were  breaches  of  no  law  for  could  not  have  been  ascertained 
to  be  such  because  of  the  uncertainty  of  the  statute]  ;  and  the 
practice  of  arbitrary  imprisonment  have  been  in  all  ages  the 
favorite  and  most  formidable  instruments  of  tyranny,  [p.  490.] 
The  courts  must  declare  the  sense  of  the  law ;  and  if  they 
should  be  disposed  to  exercise  will  instead  of  judgment,  the 
consequence  would  equally  be  the  substitution  of  their  pleasure 
to  [for]  that  of  the  legislative  body."  [p.  487.] 30a 

"It  is  law  which  has  hitherto  been  regarded  in  countries 
calling  themselves  civilized,  as  the  standard  by  which  to 
measure  all  offenses  and  irregularities  that  fall  under  public 
animadversion.  *  *  *  It  [the  law]  has  been  recommended 
as  'affording  information  to  the  different  members  of  the  com- 
munity respecting  the  principles  which  will  be  adopted  in  de- 
ciding upon  their  actions.  It  has  been  represented  as  the 
highest  degree  of  inequity  to  try  men  by  ex  post  facto  law,  or 
indeed  in  any  other  manner  than  by  the  letter  of  a  law,  for- 
mally made  and  sufficiently  promulgated.'  "31 

Prof.  Thomas  Cooper  quotes  with  approval  the  following 
words  of  Richard  Carlile  (about  A.  D.,  1820),  which  have 
as  direct  and  certain  applications  to  the  uncertain  meaning  of 
"obscene"  as  to  the  uncertainty  about  the  meaning  of  "blas- 
phemy" or  "Christianity."  Carlile  wrote :  "No  one  can  under- 
stand what  is  meant  by  blasphemous  publications,  or  by 
Christianity;  and  what  no  one  can  understand,  no  law  can 
justly  take  cognizance  of,  or  support."32 

Before  this  Blackstone  had  made  a  similar  protest  against 
the  heresy  statutes,  although  he  approved  of  most  of  the  super- 
stitions of  his  time,  including  witchcraft  and  the  prosecu- 
tions for  heresies  and  blasphemy,  yet  he  had  too  good  a  legal 
mind  not  to  see  the  evils  of  uncertainty  as  to  the  criteria  of 
.guilt,  even  in  laws  the  object  of  which  he  approved.  He 
says : 

"What  doctrines  shall  therefore  be  adjudged  heresy 
was  left  by  our  constitution  to  the  determination  of  the  eccle- 
siastical judge  who  had  herein  a  most  arbitrary  latitude  al- 

••aThe  Federalist,  at  pages  indicated. 

"2,    Godwin's    Political    Justice,    p.    289.    (A.    D.,    1796.) 

"Laws  of  Libel  and  Liberty  of  the  Press,  p.  157. 

380 


. 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

lowed  him.  *  *  *  What  ought  to  have  alleviated  the  punish- 
ment, the  uncertainty  of  the  crime,  seems  to  have  enhanced  it 
in  those  days  of  blind  zeal  and  pious  cruelty." 

Commenting  on  the  statute  I.  Eliz.  c.  1  repealing  forme 
statutes  against  heresy,  he  says :  "Thus  was  heresy  reduced 
to  a  greater  certainty  than  before,  though  it  might  not  have 
been  the  worse  to  have  defined  it  in  terms  still  more  precise 
and  particular;  as  a  man  continued  still  liable  to  be  burnt  for 
what  perhaps  he  did  not  understand  to  be  heresy  till  the  eccle- 
siastical judge  so  interpreted  the  words  of  the  canonical  Scrip- 
ture. *  *  *  Everything  is  now  as  it  should  be  with  respect  to 
the  spiritual  cognizance,  and  spiritual  punishment  of  heresy, 
unless  perhaps  that  crime  ought  to  be  more  strictly  defined, 
and  no  prosecution  permitted  even  in  the  ecclesiastical  courts- 
till  the  tenets  in  question  are  by  proper  authority  previously 
declared  to  be  heretical"*2* 

In  1884  Sir  Fitz- James  Stephens,  of  the  court  of  King's 
Bench,  seems  almost  to  agree  with  Carlile.  In  the  course  of 
an  argument  for  the  repeal  of  all  statutes  against  blasphemy, 
which  he  refers  to  as  "an  admitted  blemish  in  the  existing 
law,"  and  as  "essentially  and  fundamentally  bad,"  he  points 
out  the  irreconcilable  conflict  in  the  various  judicial  tests  of 
guilt  in  blasphemy  prosecutions,  and  reducing  the  uncertainty 
of  some  of  these  to  an  absurdity,  he  describes  them  "as  desti- 
tute of  that  manly  simplicity  which  ought  to  be  the  charac- 
teristics of  the  law.  There  is  no  reason  why  the  law  should 
be  so  indistinct."33 

Unfortunately  in  England  there  is  no  constitutional  limita- 
tion upon  the  power  of  Parliament  such  as  would  preclude 
the  enactment  of  uncertain  laws.  What  Sir  Fitz-James  Ste- 
phens contends  for  as  a  matter  of  wisdom  to  be  acted  upon  by 
the  Parliament,  in  America  is  a  constitutionally  guaranteed 
right,  and  no  American  judge,  conscious  of  uncertainty  in  a 
penal  statute,  can  enforce  it  without  violating  his  oath  of  office. 

Edward  Livingston,  a  U.  S.  Senator,  Secretary  of  State 
under  Pres.  Jackson,  and  Minister  to  France,  reputed  to  be 
one  of  the  greatest  American  lawyers  of  his  time,  in  1822^ 
wrote  these  words:  "This  dreadful  list  of  Judicial  cruelties 
was  increased  by  legislation  of  the  judges,  who  declared  acts 
which  were  not  criminal  under  the  letter  of  the  law  to  be 

wa  Blackstone,  Book  IV.,  pp.  45  to  49. 

"See,  "Blasphemy  and  Blasphemous  Libel,"  41  Fortnightly  Review,  289-S14, 
March,  1884. 

381 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

punishable  by  reason  of  its  spirit.  The  statute  gave  the  text 
and  the  tribunals  wrote  the  commentary  in  letters  of  blood, 
and  extended  its  penalties  by  the  creation  of  constructive  of- 
fenses. The  vague,  and  sometimes  unintelligible,  language  em- 
ployed in  the  penal  statutes  gave  a  color  of  necessity  to  this 
assumption  of  power,  and  the  English  nation  have  submitted 
to  the  legislation  of  its  courts,  and  seen  their  fellow  subjects 
hanged  for  constructive  felonies,  quartered  for  constructive 
treason,  and  roasted  alive  for  constructive  heresies,  with  a  pa- 
tience that  would  be  astonishing  even  if  their  written  laws  had 
sanctioned  the  butchery.  The  -first  constructive  extension  of  a 
penal  statute  beyond  its  letter  is  an  ex  post  facto  law,  as  re- 
gards the  offense  to  which  it  is  applied,  and  is  an  illegal  as- 
sumption of  legislative  power,  so  far  as  it  establishes  a  rule 
for  further  decisions.  In  our  republic,  where  the  different  de- 
partments of  government  are  constitutionally  forbidden  to  in- 
terfere with  each  other's  functions,  the  exercise  of  this  power 
would  be  particularly  dangerous.  *  *  *  It  may  be  proper 
to  observe  that  the  fear  of  these  consequences  is  not  ideal,  and 
that  the  decisions  of  all  tribunals  under  the  common  law 
justify  the  belief  that  without  some  legislative  restraint  our 
courts  would  not  be  more  scrupulous  than  those  of  other  coun- 
tries in  sanctioning  this  dangerous  abuse,  [p.  17-18.]  It  is 
better  that  acts  of  an  evil  tendency  should  for  a  time  be  done 
with  impunity  than  that  courts  should  assume  legislative  pow- 
ers, which  assumption  is  itself  an  act  more  injurious  than  any 
it  may  purport  to  repress.  There  are  therefore  no  construc- 
tive offenses,  [p.  118.]  Penal  laws  should  be  written  in  plain 
language,  clearly  and  unequivocally  expressed,  that  they  may 
neither  be  misunderstood  or  perverted.  *  *  *  The  ac- 
cused in  all  cases  should  be  entitled  to  a  public  trial,  con- 
ducted by  known  rules/'  etc.  [p.  H3-]34 

At  the  time  when  Livingston  wrote,  Puritan  prudery  had 
scarcely  made  a  beginning  toward  its  legalization.  Under  the 
common  law  of  England  before  the  revolution  "obscenity"  in 
literature  had  been  punished  only  when  it  was  incidental  to 
treasonable  or  blasphemous  utterances.  Some  American 
judges,  with  that  peculiar  intellectual  capacity  which  enables 
them  without  research  to  determine  historical  f?cts  of  the  past 
on  the  mere  testimony  of  their  inner  consciousness,  have  often 
asserted  the  contrary,  but  the  fact  remains  that  prior  to  the 

•*"Report  made  to  the  General  Assembly  of  the  State  of  Louisiana  on  the 
plan  of  a  Penal  Code,"  by  Edward  Livingston,  at  pages  as  indicated  in  the  text. 

382 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

Revolution  there  is  no  recorded  case  of  punishment  for  an  ob- 
scene libel  wherein  the  obscenity  of  the  publication,  merely  as 
such  obscenity  and  dissociated  from  treason  and  blasphemy, 
was  ever  punished.35 

Thus  far  we  have  examined  the  statements  of  those  persons 
without  whose  warfare  against  tyranny  we  would  to-day  enjoy 
less  liberty  than  is  permitted  us.  We  have  everywhere  found 
that  the  necessity  for  law  arises  from  the  fact  of  everyday  ex- 
perience that  frail  human  beings  cannot  lose  their  weakness 
by  receiving  judicial  office,  and  that,  because  of  this,  we  must 
submit  to  the  penalties  which  may  be  determined  by  whim, 
caprice,  prejudice,  moral  idiosyncrasies  and  sentimentalism,  or 
even  malice,  unless  the  judge's  will  is  always  held  in  subjec- 
tion to  the  same  law  which  is  designed  to  warn  all  others  and 
defines  the  conduct  to  be  punished.  We  have  also  seen  that 
it  was  the  desire  to  achieve  this  result  which  prompted  the 
demand  for  the  English  Charters  of  liberty,  and  we  know  the 
terrible  havoc  which  has  resulted  from  the  neglect  of  this  re- 
quirement that  the  criminal  law  should  be  certain.  Further- 
more we  have  seen  how  the  judge  who  insisted  on  the  charter- 
rights,  refused  to  enforce,  except  as  to  sheep,  a  statute  penal- 
izing the  theft  of  sheep  "or  other  cattle"  because  the  word 
"cattle"  was  too  vague,  holding  that  since  it  required  judicial 
legislation  to  make  it  certain  it  could  not  be  "the  law  of  the 
land."  It  was  after  that  construction  of  "law,"  and  with  it, 
that  we  adopted  our  constitutions  guaranteeing  "due  process 
of  law." 

I  therefore  conclude  that  the  historical  interpretation  of 
the  word  "law"  is  in  accord  with  its  significance  as  derived 
from  a  study  of  its  essential  nature,  and  that  among  other 
qualities  which  must  inhere  in  every  penal  statute,  in  the  ab- 
sence of  which  it  cannot  be  "the  law,"  nor  constitute  "due  pro- 
cess of  law,"  is  that  of  certainty  in  the  description  of  the  con- 
duct penalized.  In  other  words,  according  to  the  historical 
interpretation  of  "law,"  "No  penal  law  can  be  sustained  unless 
its  mandates  are  so  clearly  expressed  that  any  ordinary  person 
can  determine  in  advance  what  he  may  or  may  not  do  under  it," 
.and  by  that  test  all  statutes  against  "obscene,  indecent,  filthy  or 
disgusting"  literature  and  art,  and  a  large  number  of  other 
statutes  similarly  vague,  fail  to  constitute  "due  process  of  law." 
Next  we  will  pass  to  a  study  of  the  modern  decisions  as  af- 
fecting the  problem  under  discussion. 

*5"ObFcrne  Literature  under  the  Common  Law."     Albany  Law  Journal,  May, 
1907;   or  published  in   Chapter  III. 

3S3 


CHAPTER  XXI. 

"DUE  PROCESS  OF  LAW"  IN  RELATION  TO 

STATUTORY  UNCERTAINTY  AND 

CONSTRUCTIVE  OFFENSES. 

PART  IV. 

Certainty  Required  By  Modern  Authorities. 

The  modern  authorities  are  quite  as  definite  as  the  older 
ones  in  insisting  upon  absolute  certainty  in  the  definition  of 
that  which  is  penalized,  and  we  will  now  proceed  to  a 
mere  compilation  of  authoritative  utterances  bearing  upon  the 
requirement  of  statutory  certainty.  Most  of  these  quotations 
are  from  cases  construing  punitive  statutes.  In  others,  how- 
ever, we  find  the  principle  definitely  applied  to  the  end  of  de- 
claring uncertain  statutes  to  be  unconstitutional.  First  will 
be  collected  some  of  the  authorities  which  show  that  the  his- 
torical interpretation  of  "law,"  which  requires  certainty  in  the 
meaning  of  penal  statutes  before  they  can  constitute  "law,"  was 
perpetuated  by  our  constitutional  guarantees  of  "due  process 
of  law."  After  that  will  be  quoted  some  judicial  opinions 
which  specifically  declare  that  the  destruction  of  all  arbitrari- 
ness of  courts,  by  the  certainty  of  meaning  in  the  statutory 
statement  of  the  criteria  of  guilt,  is  a  prerequisite  without 
which  penal  statutes  do  not  furnish  "due  process  of  law." 

For  the  benefit  of  the  lazy  and  the  very  busy  man,  I  violate 
my  ideals  of  what  a  legal  argument  ought  to  be  and  pursue  the 
method  of  merely  compiling  quotations  from  judicial  opinions, 
which  are  deemed  more  or  less  material  to  the  contention  which 
I  am  making.  If  I  merely  cited  the  opinions  instead  of  quoting 
them,  I  fear  not  many  of  them  would  be  read. 

THE  HISTORICAL  AND  SCIENTIFIC  INTERPRETATION  OF  "LAW"   IS 
PERPETUATED  BY  OUR  CONSTITUTIONS. 

In  reading  the  following  quotations  it  is  necessary  always 
to  bear  in  mind  that  the  "settled  maxims" — "the  principles 
which  were  before  the  constitutions" — "the  ancient  rights  and 

384 


STATUTORY   UNCERTAINTY   AND   CONSTRUCTIVE   OFFENSES. 

liberties  of  the  subject,"  from  the  time  of  Magna  Charta  down, 
always  included  the  protection  of  those  accused  of  crime  by 
insistance  upon  the  maxim  "Ubi  jus  incertum,  ibi  jus  nullum" 
(where  the  law  is  uncertain  there  is  no  law). 

"Due  process  of  law"  means  "an  exercise  of  the  powers  of 
government  as  the  settled  maxims  of  the  law  permit  and  sanc- 
tion, under  such  safeguards  as  these  maxims  prescribe  for  the 
class  of  cases  to  which  the  one  in  question  belongs."36 

"Even  in  judicial  proceedings  we  do  not  ascertain  from  the 
constitution  what  is  lawful  process  but  we  must  test  their 
action  by  principles  which  were  before  the  constitution  and 
the  benefit  of  which  we  assume  that  the  constitution  was  in- 
tended to  perpetuate."37 

"These  phrases  [of  the  Constitution]  did  not  mean  merci- 
ful nor  even  just  laws  but  they  did  mean  equal  and  general 
laws,  fixed  and  certain.  *  *  *  The  English  colonies  in 
America  were  familiar  with  the  conflict  between  customary 
law  and  arbitrary  prerogative  and  claimed  the  protection  of 
these  charters.  When  they  came  to  form  independent  gov- 
ernments, they  sought  to  guard  against  arbitrary  and  unequal 
governmental  action  by  inserting  the  same  phrase  in  their 
constitutions.  *  *  *  It  does  not  follow  that  every  statute 
is  'the  law  of  the  land,'  nor  that  every  process  authorized  by 
a  legislature  is  'due  process  of  law.'  "38 

"No  man  shall  be  arrested,  imprisoned  or  exiled  or  de- 
prived of  his  life,  liberty  or  estate,  but  by  the  judgment  of  his 
peers,  or  the  law  of  the  land,  is  so  manifestly  conformable  to 
the  words  of  Magna  Charta,  that  we  are  not  to  consider  it  as  a 
newly  invented  phrase,  first  used  by  the  makers  of  our  consti- 
tution, but  we  are  to  look  at  it  as  the  adoption  of  one  of  the 
greatest  securities  of  private  right,  handed  down  to  us  among 
the  liberties  and  privileges  which  our  ancestors  enjoyed  at  the 
time  of  their  emigration,  and  claimed  to  hold  and  retain  as 
their  birthright.  These  terms,  in  this  connection,  cannot,  we 
think,  be  used  in  their  most  bold  and  literal  senses  to  mean  the 
law  of  the  land  at  the  time  of  the  trial,  because  the  laws  may 
be  shaped  and  altered  by  the  legislature  from  time  to  time ;  and 
such  a  provision,  intended  to  prohibit  the  making  of  any  law 

••State  v.  Board  of  Med.  Exams.  34  Minn.  387-389,  Meyer's  Vested  Rights, 
p.  196. 

"Weimer  v.   Bunbury,  30  Mich.,  301   (213)     State  v.  Doherty,  60  Me..  504. 
"Eames  v.    Savage,   77   Me.,   212   (220,   221),   1885;   Meyer's  Vested  RighU, 

385 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL    LAW. 

impairing  the  ancient  rights  and  liberties  of  the  subject,  would 
under  such  a  construction  be  wholly  nugatory  and  void.  The 
legislature  might  simply  change  the  law  by  statute,  and  thus 
remove  the  landmark  and  barrier  intended  to  be  set  up  by  this 
provision  in  the  bill  of  rights.  It  must  therefore  have  intended 
the  ancient  established  law  and  course  of  legal  proceedings,  by 
an  adherence  to  which  our  ancestors  in  England,  before  the 
settlement  of  this  country,  and  the  emigrants  themselves  and 
their  descendants,  had  found  safety  for  their  personal  rights."39 

This  would  include  the  requirement  of  certainty  in  tests 
of  guilt,  as  laid  down  by  Coke,  Blackstone  and  others,  as 
quoted  in  the  "Historic  Interpretation  of  'Law,' "  and  the 
maxim,  "where  the  law  is  uncertain  there  is  no  law." 

"By  'due  process  of  law'  is  meant  such  general  and  legal 
forms  and  course  of  proceeding  as  were  known  either  at  com- 
mon law  or  were  generally  recognized  at  the  time  of  the 
adoption  of  the  provision."40 

"The  words,  'due  process  of  law,'  were  undoubtedly  in- 
tended to  convey  the  same  meaning  as  the  words,  'by  the  law 
of  the  land'  in  Magna  Charta.  Lord  Coke  in  his  commentary 
on  these  words  (2  Inst.,  50)  says  they  mean  due  process  of 
law.  It  is  manifest  that  it  was  not  left  to  the  legislative  power 
to  enact  any  process  which  might  be  devised.  The  article  is  a 
restraint  on  the  legislative  as  well  as  the  executive  and  judicial 
powers  of  the  government,  and  cannot  be  so  construed  as  to 
leave  Congress  free  to  make  any  process  'due  process  of  law,'' 
by  its  mere  will.  We  must  look  to  those  settled  usages  and 
modes  of  proceeding  existing  in  the  common  and  statute  law 
of  England,  before  the  emigration  of  our  ancestors,  and  which 
are  shown  not  to  have  been  unsuited  to  their  civil  and  political 
conditions  by  having  been  acted  on  by  them  after  the  settle- 
ment of  this  country."41 

These  authorities  sufficiently  show  that  the  Federal  and 
State  constitutions  guaranteeing  "Due  Process  of  Law," 
adopted  the  conception  of  "Law"  which  requires  from  the  law- 
making  power  an  absolute  certainty  in  the  statement  of  its 
criteria  of  guilt  before  a  penal  statute  is  the  law  of  the  land. 
This  still  further  vindicates  the  historical  interpretation  of 

"Jones  v.  Robbins,  8  Gray  (74  Mass.),  329  (342,  843);  Meyer's  Vested 
Rights,  195. 

•"Gibson  v.  Mason,  5  Nev.,  283  (302);  McCarrol  v.  Weeks,  5  Hayw.  (Tenn.), 
246. 

"Murry  v.  Hoboken,  etc.,  18  How.,  272  (278),  (U.  S.,  1855);  Davidson  T. 
New  Orleans,  96  U.  S.,  97  (1877). 

386 


STATUTORY   UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

"law"  as  hereinbefore  made,  and  aids  us  to  resurrect  and  re- 
vivify the  ancient  maxim,  "Where  the  law  is  uncertain  there 
is  no  law."  It  is  hoped  that  thus  may  be  destroyed  all  those 
tyrannous  laws  whose  meanings  no  one  knows  until  after  trial, 
and  as  to  which  no  lawyer  can  advise,  because  they  are  born 
of  a  stupid  moral  sentimentalism,  fathered  by  those  whose 
dense  ignorance  of  the  meaning  of  law  and  liberty  is  evidenced 
in  the  fact  that  mere  question-begging  vituperative  epithets,  so 
often  expressing  only  diseased  emotions,  supplant  the  necessary 
statutory  definitions  of  that  which  is  prohibited.  Next  we  shall 
examine  the  judicial  utterances  in  so  far  as  they  may  bear 
upon  the  required  certainty  in  statute  law. 

CERTAINTY  IN  CIVIL  AND  POLITICAL  STATUTES. 

These  disquisitions  were  primarily  designed  to  discuss  the 
requirement  of  certainty  in  penal  statutes.  In  the  foregoing 
essays  it  seemed  necessary  to  the  clarification  of  our  thinking 
to  point  out  how  and  why  .certainty  is  equally  a  requisite  of 
those  statutes  which  seek  to  do  something  else  than  merely  to 
declare  and  enforce  natural  justice.  As  confirming  that  part 
of  my  speculations  which  asserts  that  "law"  presupposes  the 
abolition  of  all  arbitrary  power  such  as  unavoidably  results 
from  the  enforcement  of  uncertain  statutes,  as  well  as  to  em- 
phasize the  importance  of  the  maxim,  "Where  the  law  is  un- 
certain there  is  no  law,"  a  few  opinions  in  civil  cases  will  be 
quoted,  in  which  the  principle  of  the  maxim  is  applied  to  non- 
penal  statutes. 

"It  is  impossible  for  a  man  to  regulate  his  conduct  by  a 
rule  that  has  no  existence ;  it  therefore  follows  of  necessity 
that  laws  can  influence  the  conduct  of  men  only  after  they  are 
made."42 

"An  act  may  be  passed  and  published  by  legislatures  na- 
tional, state  and  territorial,  with  all  the  usual  formalities  and 
appendages,  and  yet  be  pronounced  no  law  when  put  to  the 
judicial  test.  *  *  *  Strip  this  act  of  its  outside  appendages, 
leave  it  solitary  and  alone,  is  it  possible  for  any  human  being 
to  tell  by  what  authority  the  seat  of  Government  of  Washing- 
ton Territory  was  to  be  removed  from  Olympia  to  Vancou- 
ver?"41 (On  the  implied  negative  the  legislative  act  was 
annulled.) 

«Davis  v.   Ballard,   1  Marshall    (Ky.),  577. 

"Seat  of  Government  Case,  1  Wash.  Ter.  Rep.,  128. 

387 


OBSCENE    LITERATURE   AND    CONSTITUTIONAL    LAW. 

"The  word  equity  in  the  oath  administered  to  the  special 
jury  is  synonymous  with  law,  and  does  not  mean  some  unde- 
fined and  undefinable  notion  which  the  jury  may  entertain  of 
the  justice  of  the  case,  but  a  system  of  jurisprudence  governed 
by  established  rules  and  bound  down  by  fixed  precedents.  The 
special  jury  is  sworn  to  try  the  cause  according  to  equity  and 
the  opinion  they  entertain  of  the  evidence,  and  not  their 
opinion  of  equity,  as  well  as  the  evidence."44 

"Every  duty  becomes  such  because  the  law  makes  it  so.  It 
is  fixed  and  certain.  Unless  fixed  and  certain  it  cannot  be  a 
duty,"  said  in  civil  action  for  damages  from  negligence.45 

"Unless  then  the  description  [in  an  act  of  Congress]  is  so 
clear  and  accurate  as  to  refer  to  a  particular  patent  [or  un- 
erringly describe  the  characteristics  which  make  the  book  'ob- 
scene'] so  as  to  be  incapable  of  being  applied  to  any  other,  the 
mistake  is  fatal"** 

"We  cannot  make  the  language  for  the  law-making  power, 
when  the  means  of  construing  the  language  used,  in  any  other 
than  its  literal  and  grammatical  sense,  is  not  furnished  by  the 
act  itself  or  unmistakably  indicated  by  the  circumstances. 
*  *  *  It  [the  legislative  act]  is  void  because  it  cannot  be 
ascertained  from  its  terms,  with  any  reasonable  certainty,  what 
territory  is  assigned  to  Dallas  County."47 

These  decisions  sufficiently  demonstrate  that  as  to  those 
civil  and  political  statutes  which  create  or  enforce  artificial 
rights,  it  is  unavoidable  that  we  apply  the  old  maxim,  "Where 
the  law  is  uncertain  there  is  no  law,"  or  else  submit  to  the  arbi- 
trary tyranny  of  judicial  legislation. 

THE   TEXT-BOOK    WRITERS    ON    CERTAINTY    IN    PENAL    STATUTES. 

"The  penal  law  is  intended  to  regulate  the  conduct  of  peo- 
ple of  all  grades  of  intelligence  within  the  scope  of  responsi- 
bility. It  is  therefore  essential  to  its  justice  and  humanity  that 
it  be  expressed  in  language  which  they  can  easily  comprehend, 
that  it  be  held  obligatory  only  in  the  sense  in  which  all  can 
understand  it,  and  this  consideration  presses  with  increasing 
weight  according  to  the  severity  of  the  penalty.  Hence  every 
provision  affecting  any  element  of  a  criminal  offense  involving 

"Thornton  v.   Lane,   11   Ga.,   461-538. 

•Evansville    St.    Ry.    Co.   v.   Meadows.   IS   Ind.   App.   Ct.,   159. 
'•Blanchard  v.  Sprague,  Fed.  Case  1517,  v.  3,  p.  647,  and  cases. 
^Bittle  v.   Stuart,   34   Ark.,   229-232;   see  also,  Ferrett  v.   Attwill,   1  Blatch- 
ford,  167;   Henry  v.  Evans,  97  Mo.,  47. 

388 


STATUTORY   UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

life  or  liberty  is  subject  to  the  strictest  interpretation.  *  *  * 
It  is  the  legislature,  not  the  court,  which  is  to  define  a  crime 
and  ordain  its  punishment."48 

Under  "Due  Process  of  Law,"  Ordronaux  says:  "Every 
enactment  is  not  necessarily  'the  law  of  the  land/  *  *  * 
The  phrase  means  *  *  *  judgment  rendered  under  and 
according  to  a  general  system  of  law  which  the  community  has 
esablished  for  the  protection  of  the  civil  rights  of  all  its  mem- 
bers."49 

I  have  made  no  investigation  of  English  decisions,  but 
chanced  to  run  upon  the  following  expression,  which  I  have 
thought  best  to  preserve  by  inserting  it  here,  though  it  will 
add  a  little  to  the  disorderly  character  of  the  compilation  of 
this  chapter. 

"It  would  be  extremely  wrong  that  a  man  should,  by  a 
long  train  of  conclusions,  be  reasoned  into  a  penalty  when  the 
express  words  of  the  act  of  Parliament  do  not  authorize  it."8* 

THE  STATE  COURTS. 

"All  must  have  the  equal  protection  of  the  law  and  its  in- 
strumentalities. The  same  rule  must  exist  for  all  in  the  same 
circumstances,"51  which  cannot  be  the  same  if  the  criterion  of 
guilt  is  uncertain,  as  it  must  be  where  left  for  judicial  crea- 
tion. 

"Words  cannot  be  imported  into  a  statute  for  the  purpose 
of  construing  it."62 

"The  office  of  interpretation  is  to  bring  sense  out  of  the 
words,  not  to  bring  a  sense  into  them."53 

All  the  judicial  "tests  of  obscenity"  violate  these  rules  of 
construction.  All  such  tests  are  in  fact  interpolated  by  un- 
authorized and  unconstitutional  judicial  legislation,  and  vary 
according  to  the  exigencies  of  each  case  and  the  moral  idio- 
syncracies  of  each  judge. 

"By  the  'Law  of  the  Land'  is  meant,  not  the  arbitrary 
edict  of  any  body  of  men,  not  an  act  of  assembly,  though  it 
may  have  all  the  outward  form  of  law,  but  due  process  of 
law."54 

"Southerland,  Statutory  Construction,  1st  Ed.,  pp.  438-9. 
"Ordronaux's  Constitutional  Legislation  (1891).  p.  255. 
•°Rex  v.  Bond,  1  B.  and  Aid.  at  page  892. 

MChic.,  St.  L.  &  R.  v.  Moss,  60  Miss.,  641,  (647);  Pearson  v.  Portland,  69 
Me.,  278. 

*2State  v.  Payne,  29  Pac.  Rep.,  787. 

"McClusky  v.  Cromwell,  11  N.  Y.   (1  Kern),  593,   (602). 

"Palairet's  Appeal,  67  Penn.  St,  479,   (486);  Meyer's  Vested  Rights,  1M. 

389 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

"The  rights  of  every  individual  must  stand  or  fall  by  the 
same  rule  of  law  that  governs  every  other  member  of  the  com- 
munity under  similar  circumstances,  and  every  partial  or  pri- 
vate law  which  directly  proposes  to  destroy  or  affect  individual 
rights,  or  does  the  same  thing  by  affording  remedies  leading  to 
similar  consequences,  is  void."65 

"Under  the  requirement  of  due  process  of  law,  the  law 
must  provide  some  just  form  or  mode  in  which  the  duty  of  the 
citizen  shall  be  determined  before  he  can  be  visited  with  a 
penalty  for  non-performance  of  an  alleged  duty"58;  which  is 
not  done  if  criteria  of  guilt  are  left  uncertain,  and  consequently 
to  be  supplied  by  the  court. 

''Due  process  of  law  is  a  general  expression  and  is  equiva- 
lent to  the  'law  of  the  land.'  It  permits  the  deprivation  of  life, 
liberty  or  property  according  to  law,  not  otherwise.  It  shields 
such  right  from  arbitrary  power.  Due  process  of  law,  in  a 
[criminal]  case  like  this,  requires  a  law  describing  the  offense. 
The  definition  of  the  offense,  and  the  authority  for  every  step 
of  the  trial,  must  be  found  in  the  law  of  the  land.  Nothing 
essential  can  emanate  from  arbitrary  power."87 

"These  uncertainties  [arising  from  a  statute]  as  to  whether 
a  man  would  be  subject  to  fine  or  imprisonment,  are  not  the 
qualities  of  law,  but  rather  the  qualities  of  anarchy.  *  *  * 
That  laws  shall  exist  which  are  not  plainly  in  exact  words 
prescribed,  so  that  an  individual  may  know  them,  which  are 
not  passed  by  the  deliberation  of  the  three  legislative  depart- 
ments, each  member  in  each  branch  sworn  to  exercise  his  best 
judgment  for  the  people  upon  his  own  responsibility,  is  directly 
opposed  to  every  principle  of  the  American  or  any  [other] 
good  government."68 

The  judicially  prescribed  and  ever  varying  "tests  of  ob- 
scenity" never  had  the  indorsement  of  any  branch  of  any  legis- 
lature. 

"The  clause  'law  of  the  land'  was  defined  in  our  earlier 
cases  to  mean  'a  general  and  public  law,  equally  binding  upon 
every  member  of  the  community,'  but  by  our  later  cases  it  is 

"Wally's  Heirs  v.  Kennedy,  2  Yerg.,  554,  (555);  Bank  of  the  State  v. 
Cooper,  2  Yerg.,  599. 

"Philadelphia  v.  Scott,  81  Penn.  St.,  80,  (90);  Craig  v.  Kline,  65  Penn. 
St.,  899. 

"State  \.   Bates,   14  Utah,  293,    (300). 

"Thornton  v.  Ter.  of  Wash.,  8  Wash.  Ter.  Rep.,  488,    (494). 

39° 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

defined  to  mean  a  law  'which  embraces  all  persons  who  are  or 
may  come  into  like  situation  and  circumstances. '  "B9 

If  the  criteria  of  guilt  are  left  for  judicial  creation  the  law 
does  not  uniformly  embrace  all  persons  who  may  come  into 
like  situation. 

"It  is  obvious  there  can  be  no  certain  remedy  in  the  laws 
where  the  legislature  [or  courts  in  criminal  cases]  may  pre- 
scribe one  rule  for  one  suitor  or  a  class  of  suitors  in  the  courts, 
and  another  for  all  others  under  like  circumstances,  or  may 
discriminate  between  parties  to  the  same  suit."6* 

The  city  council  of  Hagerstown,  Md.,  had  been  authorized 
to  pass  ordinances  "to  prevent  nuisances  and  to  regulate  and 
control  offensive  trades"  and  passed  an  ordinance  prohibit- 
ing the  herding  and  keeping  of  domestic  animals  "without 
permit  therefore  first  had  and  obtained  from  the  mayor  and 
council,"  but  no  general  rules  were  prescribed  which  would 
control  the  granting  of  such  permits.  The  defendant  was 
arrested  for  violating  the  ordinance.  The  ordinance  was  at- 
tacked among  other  reasons  for  this,  that  "it  places  unreason- 
able, arbitrary,  and  oppressive  power  in  the  hand  of  the  mayor 
and  council." 

The  court  said :  "In  re  Christensen  (C.  C.)  43  Fed.  243,  it 
is  said :  'The  fact  that  it  permits  arbitrary  discriminations  and 
abuses  in  its  execution,  depending  upon  no  conditions  or  quali- 
fications whatever  other  than  the  unregulated  arbitrary  will  of 
certain  designated  persons,  is  the  touch-stone  by  which  its 
validity  is  to  be  tested.'  In  Cicero  Lumber  Co.  v.  Cicero,  176 
111.  9,  51  N.  E.  758,  42  L.  R.  A.  705,68  Am.  St.  Rep.  155,  in  a 
well  considered  case,  says :  'The  ordinance  in  so  far  as  it  in- 
vests the  Board  of  Trustees  with  the  discretion  here  indicated 
is  unreasonable.  It  prohibits  that  which  is  in  itself  and  as  a 
general  thing  lawful  and  leaves  the  power  of  permitting  or 
forbidding  the  use  of  traffic  teams  upon  the  boulevards  to  an 
unregulated  official  discretion  when  the  whole  matter  should 
be  regulated  by  permanent  local  provisions  operating  generally 
and  impartially.  *  *  *  The  ordinance  in  no  way  regulates 
or  controls  the  discretion  thereby  vested  in  the  Board.  It  pre- 
scribes no  conditions  upon  which  the  special  permission  of  the 
Board  is  to  be  granted.  Thus  the  Board  is  clothed  with  the 

59Stratton  Claim  v.  Morris  Claim,  89  Tenn.  521,  cases;  Harbison  v.  Knox- 
ville  Iron  Co.,  103  Tenn.,  434. 

•ODurkee   v.    Janesville,    28    Wise.,    464,    (471). 

391 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

right  to  grant  the  privilege  to  some  and  to  deny  it  to  others. 
Ordinances  which  thus  invest  a  city  council  or  board  of  trustees 
with  a  discretion  which  is  purely  arbitrary  and  which  may  be 
exercised  in  the  interest  of  a  favorite  few,  are  unreasonable 
and  invalid.  The  ordinance  should  have  established  a  rule  by 
which  its  impartial  enforcement  could  be  secured.'  "61 

"We  hold  the  ordinance  here  in  question  to  be  invalid  and 
contrary  to  law."82 

"It  has  been  wisely  and  aptly  said  that  this  is  a  government 
of  laws  and  not  of  men;  that  there  is  no  arbitrary  power  lo- 
cated in  any  individual  or  body  of  individuals;  but  that  all  in 
authority  are  guided  and  limited  by  those  provisions  which  the 
people  have,  through  the  organic  law,  declared  shall  be  the 
measure  and  scope  of  all  control  exercised  over  them."83 

FEDERAL  COURTS. 

"A  court  is  not  however  permitted  to  arrive  at  this  [Legis- 
lative] intention  by  mere  conjecture,  but  it  is  to  collect  it  from 
the  object  which  the  Legislature  had  in  view  and  the  expres- 
sions used,  which  should  be  competent  and  proper  to  apprise 
the  community  at  large  of  the  rule  which  it  is  intended  to 
prescribe  for  their  government.  For  although  ignorance  of 
the  existence  of  a  law  be  no  excuse  for  its  violation,  yet  if  this 
ignorance  be  the  consequence  of  an  ambiguous  or  obscure 
phraseology,  some  indulgence  is  due  to  it.  It  should  be  a  prin- 
ciple of  every  criminal  code,  and  certainly  belongs  to  ours,  that 
no  person  be  adjudged  guilty  of  an  offense  unless  it  be  created 
and  promulgated  in  terms  which  leave  no  reasonable  doubt  of 
their  meaning.  *  *  *  A  court  has  no  option  where  any 
considerable  ambiguity  arises  on  a  penal  statute,  but  is  bound 
to  decide  in  favor  of  the  party  accused.  'It  is  more  consonant 
with  the  principles  of  Liberty/  says  an  eminent  English  judge, 
'that  a  court  should  acquit  when  the  Legislature  intended  to 
punish,  than  that  it  should  punish  when  it  was  the  intent  to 
discharge  with  impunity.'  If  no  sense  can  be  discovered  in 
them  [the  words  used  in  the  statute]  as  they  are  here  intro- 
duced, the  court  had  better  pass  them  by  as  unintelligible  and 
useless  than  to  put  on  them,  at  great  uncertainty,  a  very  harsh 

"Citing  Mayor  v.  Radecke,  49  Md.  280,  33  Am.  Rep.  239;  Bostock  T.  Sams, 
95  Md.  400,  52  Atl.  655,  59  L.  R.  A.  282,  93  A.  S.  R.  394;  Cov.  Stockyards  v. 
Keith,  139  U.  S.  128,  11  Sup.  Ct.  461,  85  L.  Ed.  73;  Crowley  r.  Christensen,  187 
U.  S.  89,  11  Sup.  Ct.  18,  34  L.  Ed.  620. 

wMayor,  et  al.  v.  B.  &  O.  R.  Co.,  68  Atl.   Rep.  490. 

392 


STAT1 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

signification  and  one  which  the  Legislature  may  never  have 
designed."64 

Here  we  may  adapt  to  new  uses  the  words  of  Chief  Justice 
Best,  in  Fletcher  v.  Lord,  Sondes,  3  Bing.,  580.  He  says:  "If 
this  rule  is  violated,  the  fate  of  the  accused  person  is  decided 
by  the  arbitrary  discretion  of  judges  and  not  by  the  express 
authority  of  the  laws."  Also:  "The  courts  have  no  power 
to  create  offenses  but  if  by  a  latitudinarian  construction  they 
construe  cases  not  provided  for  to  be  within  legislative  enact- 
ment, it  is  manifest  that  the  safety  and  liberty  of  the  citizen 
are  put  in  peril,  and  that  the  legislative  domain  has  been  in- 
vaded. *  *  *  The  doctrine  is  fundamental  in  English  and 
American  lazv  that  there  can  be  no  constructive  offenses;  that 
before  a  man  can  be  punished,  his  case  must  be  plainly  and 
unmistakably  within  the  statute;  that  if  there  be  any  fair  doubt 
whether  the  statute  embraces  it,  that  doubt  is  to  be  resolved  in 
favor  of  the  accused.  These  principles  admit  of  no  dispute, 
and  often  have  been  declared  by  the  highest  courts,  and  by  no 
tribunal  more  clearly  than  the  supreme  court  of  the  United 
States."65 

''Such  an  interpretation  is  not  to  be  adopted,  to  give  effect 
to  particular  words,  which  will  require  on  the  part  of  the  court 
the  introduction  of  new  provisions  and  auxiliary  clauses,  which 
the  statute  neither  points  out  nor  even  hints  at,  and  yet  which 
are  indispensable  to  make  such  interpretation  serviceable  or 
practicable."86 

The  rule  of  this  last  decision  is  violated  by  every  one  of  the 
judicial  "tests  of  obscenity." 

"Penal  statutes  cannot  be  extended  beyond  the  OBVIOUS 
meaning  of  their  terms  on  any  plea  of  failure  of  justice."67 

"Statutes  creating  crimes  will  not  be  extended  by  judicial 
interpretation  to  cases  not  plainly  and  unmistakably  within 
their  terms.  If  this  rule  is  lost  sight  of  the  courts  may  hold  an 
act  to  be  a  crime  when  the  Legislature  never  so  intended. 
*  *  *  The  sense  of  indignation  against  such  vocation  or 
conduct  should  not  permit  a  violation  by  the  courts  of  estab- 
lished rules  of  law,  or  an  unlawful  exercise  of  jurisdiction."68 

"The  words  'by  law'  in  section  967  [U.  S.  Stat.]  are  em- 

"Enterprize,  Fed.  Case  No.  4499,  Vol.   8,  pp.  734-5. 
MU.  S.  v.  Clayton,  Fed.  Cas.  No.  14814,  Vol.  25,  p.  480. 
"U.  S.  v.  Bassett,  v.   24,  Fed.  Cases  p.  1034,  No.  14589. 
"U.   S.  v.  Garretson,  42  Fed.    R.,  25. 
"U.  S.  T.  Whittier,  Fed.  Case  No.  16888. 

393 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

phatic  and  refer  in  my  judgment  to  a  fixed  rule  in  respect  to 
time  and  manner,  and  not  to  a  discretionary  power  vested  by 
statute  in  a  state  court."69 

Uncertainty  arising  from  absence  of  specific  standards  of 
judgment  necessarily  involves  the  exercise  of  discretionary 
power  in  determining  what  shall  be  the  essence  of  guilt. 

"A  citizen  desiring  to  obey  the  laws  would  search  the  acts 
of  Congress  in  vain  to  find  that  grazing  sheep  upon  a  forest 
reserve  without  the  permit  of  the  Secretary  of  Agriculture,  is 
a  criminal  offense.  It  has  been  suggested  that  the  acts  under 
which  the  indictment  is  drawn  give  notice  that  the  Secretary 
may  make  rules  and  regulations,  and  the  search  would  not  be 
complete  and  the  inquiry  concluded  until  it  be  ascertained 
whether  he  has  made  such  rules  and  regulations,  the  violation 
of  which  it  is  expressly  declared  shall  be  a  criminal  offense 
But  here  we  are  led  back  to  a  delegation  of  legislative  power 
The  rules  prescribed  by  the  heads  of  the  departments  are  not 
necessarily  promulgated.  While  they  may  be  procured,  they 
are  not  as  easily  available  as  are  statutes  of  the  United  States ; 
nor  does  our  system  contemplate  an  examination  of  those  rules 
for  the  ascertainment  of  that  which  may  or  may  not  be  a 
crime,  for  the  right  to  prohibit  a  given  thing  under  penalty, 
belongs  to  Congress  alone.  *  *  *  It  cannot  authorize  any 
other  branch  of  the  government  [not  even  the  courts]  to  define 
that  which  is  purely  legislative,  and  that  is  purely  legislative 
which  defines  rights,  permits  things  to  be  done,  or  prohibits 
the  doing  thereof:"0 

"In  order  to  constitute  a  crime,  the  act  must  be  one  which 
the  party  is  able  to  know  in  advance  whether  it  is  criminal  or 
not.  The  criminality  of  an  act  cannot  depend  upon  whether  a 
jury  may  think  it  reasonable  or  unreasonable.  There  must  be 
some  definiteness  and  certainty."71 

How  can  any  man  know  in  advance  from  a  mere  reading 
of  the  statute  by  what  "test  of  obscenity"  the  judge  or  jury 
may  determine  the  guilt  or  innocence  of  his  conduct  in  circu- 
lating a  book  or  picture?  Of  course  he  can't  know  and  there- 
fore such  laws  cannot  constitute  "Due  Process  of  Law." 

"No  penal  law  can  be  sustained  unless  its  mandates  are 
so  clearly  expressed  that  any  ordinary  person  can  determine  in 

"Meyers   v.    Tyson,   Fed.   Case   9995-13   Blatch,   242. 

TOU.   S.  v.  Mathews,  146  Fed.  Rep.  308;  U.   S.  v.   Eaton,   144  U.   S.,   887. 

"Tozer  v.  U.   S.,  52  Fed.  Rep.,  919. 

394 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

advance  what  he  may  and  what  he  may  not  do  under  it.  [citing 
authorities]  Lieb.  Herm.  156.  In  this  the  author  quotes  the 
Chinese  Penal  Code  which  reads  as  follows :  'Whoever  is  guilty 
of  improper  conduct  and  of  such  as  is  contrary  to  the  spirit  of 
the  laws,  though  not  a  breach  of  any  specific  part  of  it,  shall 
be  punished  at  least  forty  blows,  and  when  the  impropriety  is 
of  a  serious  nature,  with  eighty  blows'  There  is  very  little 
difference  between  such  a  statute  and  one  which  would  make 
it  a  criminal  offense  to  chage  more  than  a  reasonable  rate."71* 

"But  to  punish  a  man  for  the  non-performance  of  a  duty, 
it  is  not  sufficient  that  the  law  impliedly  requires  him  to  do 
the  act.  The  statute  must  be  clear  and  explicit  in  its  terms,  in 
defining  that  duty,  in  order  that  he  may  know  what  he  is 
called  upon  to  do.  and  what  it  is  his  duty  to  avoid.''72 

CERTAINTY  REQUIRED  BY  THE  U.  S.  SUPREME  COURT. 

The  Supreme  Court  of  the  United  States  whenever  called 
upon  to  express  an  opinion  upon  the  subject  has  been  uniformly 
insistent  upon  the  requirement  of  certainty  in  the  statutory 
definition  of  crimes. 

"There  can  be  no  constructive  offenses."71 

"It  is  axiomatic  that  statutes  creating  and  defining  crimes 
cannot  be  extended  by  intendment,  and  that  no  act,  however 
wrongful,  can  be  punished  under  such  a  statute  unless  clearly 
within  its  terms."74 

Chief  Justice  Marshall  said  this: 

"The  rule  that  penal  laws  are  to  be  construed  strictly, 
is  perhaps  not  much  less  old  than  construction  itself.  It  is 
founded  on  the  tenderness  of  the  law  for  the  rights  of  the 
individuals ;  and  on  the  plain  principle  that  the  power  of 
punishment  is  vested  in  the  legislative,  not  in  the  judicial  de- 
partment. It  is  the  legislature,  not  the  court,  which  is  to  define 
a  crime,  and  ordain  its  punishment.  ...  To  determine 
that  a  case  is  within  the  intention  of  a  statute  its  language 
must  authorize  us  to  say  so.  It  would  be  dangerous,  indeed, 
to  carry  the  principle  that  a  case  which  is  within  the  mischief 
of  a  statute,  is  within  its  provisions  so  far  as  to  punish  a 
crime  not  enumerated  in  the  statute,  because  it  is  of  equal 
atrocity,  or  of  kindred  character,  with  those  which  are  enu- 

"aChic.  etc.  Ry.  Co.  v.  Dey  35  Fed.  Rep.  866-867. 
T2U.   S.  v.  Dwyer,  56  Fed.   Rep.   468. 
T8U.    S.  v.   Lacher,   134   U.   S.  628. 
T«Todd  v.  U.   S.,  158  U.  S.  282. 

395 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

merated.  If  this  principle  has  ever  been  recognized  in  ex- 
pounding criminal  law,  it  has  been  in  cases  of  considerable 
irritation  which  it  would  be  unsafe  to  consider  as  precedents 
forming  a  general  rule  for  other  cases.76 

Before  this  the  Supreme  Court  had  said :  "The  effect  of 
the  provision  [requiring  Due  Process  of  Law]  is  to  secure  the 
individual  from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment."76 

"If  the  language  is  clear  it  is  conclusive.  There  can  be  no 
construction  where  there  is  nothing  to  construe.  The  words 
must  not  be  narrowed  to  the  exclusion  of  what  the  legislature 
intended  to  embrace,  and  they  must  be  such  as  to  leave  no 
reasonable  doubt  upon  the  subject."'1'1 

"Laws  which  prohibit  the  doing  of  things,  and  provide  a 
punishment  for  their  violation,  should  have  no  double  meaning. 
A  citizen  should  not  unnecessarily  be  placed  where,  by  an  honest 
error  in  the  construction  of  a  penal  statute,  he  may  be  sub- 
jected to  a  prosecution  for  a  false  oath,  and  an  inspector  of 
elections  should  not  be  put  in  jeopardy  because  he,  with  equal 
honesty,  entertains  an  opposite  opinion.  .  //  the  legis- 

lature undertakes  to  define  by  statute  a  new  offense  and  pro- 
vide for  its  punishment,  it  should  express  its  will  in  language 
that  need  not  deceive  the  common  mind.  Every  man  should  be 
able  to  knozv  with  certainty  when  he  is  committing  a  crime. 
.  .  .  It  would  certainly  be  dangerous  if  the  legislature  could 
set  a  net  large  enough  to  catch  all  possible  offenders  and  leave 
it  to  the  court  to  step  inside  and  say  who  could  be  rightfully 
detained,  and  who  should  be  set  at  large.  This  would  to  some 
extent  substitute  the  Judicial  for  the  legislative  department  of 
the  government.'"19 

"When  we  consider  the  nature  and  theory  of  our  govern- 
ment, the  principles  upon  which  they  are  supposed  to  rest, 
and  review  the  history  of  their  development,  we  are  con- 
strained to  conclude  that  they  do  not  mean  to  leave  room  for 
the  play  and  action  of  purely  arbitrary  power"™ ;  such  as  must 
result  if  the  statute  leaves  the  test  of  criminality  uncertain. 

"No  language  is  more  worthy  of  frequent  and  thoughtful 

*U.  S.  v.  Wiltberger,  5  Wheat.  95;  see  also  Ferrett  v.  Atwill,  1  Blatch- 
ford  157. 

"Bank  of  Columbia  v.  Oakley,  4  Wheat.  2S5  (244),  Meyer's  Vested 
Rights  196. 

"U.   S.  v.  Hartwell,  78  U.  S.    (6  Wall)   896. 

WU.    S.  v.  Reese  92  U.   S.   219-221. 

"Yick  Wo,  v.  Hopkins,  118  U.   S.  856-359. 

396 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 


consideration  than  these  [foregoing]  words  of  Mr.  Justice 
Mathews."80 

"The  words  'due  process  of  law'  come  to  us  from  England, 
and  their  requirements  were  there  designed  to  secure  the  sub- 
ject against  the  arbitrary  action  of  the  crown  and  place  him 
under  the  protection  of  the  law.  ...  In  this  country  the 
requirements  are  intended  to  have  a  similar  effect  against  legis- 
lative power,  that  is,  to  secure  the  citizen  against  any  arbitrary 
deprivation  of  his  rights  whether  relating  to  his  life,  his 
liberty  or  his  property.  .  .  .  The  great  purpose  of  the  re- 
quirements is  to  exclude  everything  that  is  arbitrary  and  ca- 
pricious in  legislation  affecting  the  rights  of  the  citizens."*1 

"Lazvs  which  create  crime  ought  to  be  so  explicit  that  all 
men  subject  to  their  penalties  may  know  what  acts  it  is  their 
duty  to  avoid.  U.  S.  v.  Sharp,  Pet.  C.  C.  118,  Fed.  Case  No. 
16264."** 

"In  the  administration  of  the  criminal  justice  no  rule  can 
be  applied  to  one  class  which  is  not  applicable  to  all  other 
classes"88;  which  is  not  insured  if  the  tests  of  criminality  are 
of  judicial  creation. 

"It  is  all  important  that  a  criminal  statute  should  define 
clearly  the  offense  which  it  purports  to  punish,  and  that  when 
so  defined  it  should  be  within  the  limits  of  the  power  of  the 
legislative  body  enacting  it."84 

LOUISVILLE  &  N.  RY.  CO.  V.   COMMONWEALTH. 

Perhaps  the  lengthiest  statement  concerning  the  require- 
ment of  certainty  in  a  criminal  statute  is  made  by  the  Court  of 
Appeals  of  Kentucky,  in  declaring  unconstitutional  a  statute 
penalizing  transportation  companies  for*  charging  more  than 
a  just  and  reasonable  rate  of  toll  for  the  transportation  of 
passengers  and  of  freight.  In  that  case  the  court  among  other 
things  said  this : 

"That  this  statute  leaves  uncertain  what  shall  be  deemed  a 
'just  and  reasonable  rate  of  toll  or  compensation,'  cannot  be 
denied ;  and  that  different  juries  might  reach  different  conclu- 
sions, on  the  same  testimony,  as  to  whether  or  not  an  offense 

«°Gulf  C.  &  S.  Fe.  Ry.  v.  Ellis,  165  U.  S.  159. 

81Dent  v.  West  Virginia,  129  U.  S.  114;  s.  c.  Meyer's  Vested  Rights,  195; 
Millett  v.  People,  117  111.  294.  (1886). 

•HJ.  S.  v.  Brewer,  139  U.  S.  288,  11  Sup.  Ct.  Rep.  638;  U.  S.  T.  New 
Bedford  Bridge  Co.,  Fed.  Case  No.  15867. 

•"Gibson  v.   Mississippi,  162  U.   S.  591. 

"James  v.  Bowman,  190  U.  S.  127. 

397 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

has  been  committed,  must  also  be  conceded.  The  criminality 
of  the  carrier's  act,  therefore,  depends  on  the  jury's  view  of  the 
reasonableness  of  the  rate  charged,  and  this  latter  depends  on 
many  uncertain  and  complicated  elements.  That  the  corpora- 
tion has  fixed  a  rate  which  it  considers  will  bring  it  only  a  fair 
return  for  its  investment  does  not  alter  the  nature  of  the  act. 
Under  this  statute  it  is  still  a  crime,  though  it  cannot  be  known 
to  be  such  until  after  an  investigation  by  a  jury,  and  then  only 
in  that  particular  case,  as  another  jury  may  take  a  different 
view,  and,  holding  the  rate  reasonable,  find  the  same  act  not 
to  constitute  an  offense.  There  is  no  standard  whatever  fixed 
by  the  statute,  or  attempted  to  be  fixed,  by  which  the  carrier 
may  regulate  its  conduct.  And  it  seems  clear  to  us  to  be  utterly 
repugnant  to  our  system  of  laws  to  punish  a  person  for  an  act, 
the  criminality  of  which  depends,  not  on  any  standard  erected 
by  the  law,  which  may  be  known  in  advance,  but  on  one  erected 
by  a  jury;  and  especially  so,  as  that  standard  must  be  as 
variable  and  uncertain  as  the  views  of  different  juries  may 
suggest,  and  as  to  which  nothing  can  be  known  until  after  the 
commission  of  the  crime. 

"If  the  infliction  of  the  penalties  prescribed  by  the  statute 
would  not  be  the  taking  of  property  without  due  process  of 
law,  and  in  violation  of  both  state  and  federal  constitutions, 
we  are  not  able  to  comprehend  the  force  of  our  organic  laws. 
In  Louisville  &  N.  R.  Co.  v.  Railroad  Commission  of  Ten- 
nessee, 1 6  Am.  &  Eng.  r.  Cas.  15,  a  statute  very  similar  to 
the  one  under  consideration  was  thus  disposed  of  by  the 
learned  judge  (Baxter)  :  'Penalties  cannot  be  thus  inflicted  at 
the  discretion  of  a  jury.  Before  the  property  of  a  citizen, 
natural  or  corporate,  can  be  thus  confiscated,  the  crime  for 
which  the  penalty  is  inflicted  must  be  defined  by  the  law- 
making  power.  The  legislature  cannot  delegate  this  power  to 
a  jury.  If  it  can  declare  it  a  criminal  act  for  a  railroad  cor- 
poration to  take  more  than  a  'fair  and  just  return'  on  its 
investments,  it  must,  in  order  to  the  validity  of  the  law,  define 
with  reasonable  certainty  what  would  constitute  such  'fair  and 
just  return.'  The  act  under  review  does  not  do  this,  but 
leaves  it  to  the  jury  to  supply  the  omission.  No  railroad 
company  can  possibly  anticipate  what  view  a  jury  may  take  of 
the  matter,  and  hence  cannot  know,  in  advance  of  a  verdict, 
whether  its  charges  are  lawful  or  unlawful.  One  jury  may 
convict  for  a  charge  made  on  a  basis  of  4  per.  cent.,  while 

398 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

another  might  acquit  an  accused  who  had  demanded  and  re- 
ceived at  the  rate  of  6  per  cent.,  rendering  the  statute,  in  its 
practical  working,  as  unequal  and  unjust  in  its  operation  as  it 
is  indefinite  in  its  terms/    The  Supreme  Court  of  the  United 
States,  in  Railroad  Commission  Cases  116  U.  S.  336,  6  Sup. 
Ct.  334,  348,  388,  391,  1191,  refers  to  this  Tennessee  case,  and 
substantially  approves  it  by  distinguishing  the  case  then  before 
the  court  from  the  Tennessee  case.     This  case  is  also  used 
to  support  the  text  in  8  Am.  &  Eng.  Enc.  Law,  p.  935,  where 
it  is  said:     'Although  a  statute  has  been  held  to  be  unconsti- 
tutional which  left  it  to  the  jury  to  determine  whether  or  not  a 
charge  was  excessive  and  unreasonable,  in  order  to  ascertain 
whether  a  penalty  is  recoverable,  yet  where  the  action  is  merely 
for  recovery  of  the  illegal  excess  over  reasonable  rates,  this 
is  a  question  which  is  a  proper  one  for  a  jury.'     Mr.  Justice 
Brewer,  in  the  case  of  Railway  Co.  v.  Dey,  35  Fed.  866,  had 
under  consideration  the  provision  of  a  statute  similar  to  the 
one  we  have  before  us,  and,  while  the  statute  was  upheld,  it 
was  only  because  there  was  a  schedule  of  rates  provided  in 
the  act  which  rendered  the  test  of  reasonableness  definite  and 
certain.    The  learned  judge  there  said :    'Now  the  contention  of 
complainants  is  that  the  substance  of  these  provisions  is  that, 
if  a  railroad  company  charges  an  unreasonable  rate,  it  shall 
be  deemed  a  criminal,  and  punished  by  fine,  and  that  such  a 
statute  is  too  indefinite  and  uncertain,  no  man  being  able  to  tell 
in  advance  what  in  fact  is,  or  what  any  jury  will  find  to  be, 
a  reasonable  charge.    If  this  were  the  construction  to  be  placed 
upon  this  act  as  a  whole,  it  would  certainly  be  obnoxious  to 
complainant's  criticisms,  for  no  penal  law  can  be  sustained 
unless  its  mandates  are  so  clearly  expressed  that  any  ordinary 
person  can  determine  in  advance  what  he  may  and  what  he 
may  not  do  under  it.    In  Dwar.  St.  652,  it  is  laid  down  that  it 
is  impossible  to  dissent  from  the  doctrine  of  Lord  Coke  that 
'acts  of  Parliament  ought  to  be  plainly  and  clearly,  and  not 
cunningly  and  darkly,  penned,    especially  in  legal    matters.' 
See  also  U.  S.  v.  Sharp,  Pet.,  C.  C.  122.  Fed.  Cas.  16,  264; 
The  Enterprise,  i  Paine,  34,  Fed.  Cas.  No.  4,  499 ;  Bish.  St. 
Crimes  41  ;  Lieb.  Herm.  156.    And  the  learned  judge  concludes 
there  is  very  little  difference  between  a  provision  of  the  Chinese 
Code,  which  prescribed  a  penalty  against  any  one  Who  should 
be  guilty  of  'improper  conduct/  and  a  statute  which  makes  it 


399 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

a  criminal  offense  to  charge  more  than  a  reasonable  rate. 
The  same  learned  judge  discussing  the  kindred  subject  of  un- 
reasonable difference  in  rates  in  Tozar  v.  U.  S.  52  Fed.  917, 
said :  'But,  in  order  to  constitute  a  crime,  the  act  must  be  one 
which  the  party  is  able  to  know  in  advance  whether  it  is  crimi- 
nal or  not.  The  criminality  of  an  act  cannot  depend  upon 
whether  a  jury  may  think  it  reasonable  or  unreasonable.  There 
must  be  some  definiteness  and  certainty.  When  we  look  on 
the  other  side  of  the  question,  we  find  the  contention  of  the 
State  supported  by  neither  reason  or  authority.  No  case  can 
be  found,  we  believe,  where  such  indefinite  legislation  has  been 
upheld  by  any  court  when  a  crime  is  sought  to  be  imputed  to 
the  accused.  In  the  case  from  77  111.  the  court  said :  That  sec- 
tion, by  itself,  makes  the  offense  to  consist  in  taking  more 
than  a  fair  and  reasonable  rate  of  toll  and  compensation,  with- 
out reference  to  any  standard  of  what  is  fair  and  reasonable. 
In  such  case  it  may  be  seen  different  persons  have  different 
opinions  as  to  what  is  a  fair  and  reasonable  rate.  Courts  and 
juries,  too,  would  differ,  and  at  one  time  or  place  a  defendant 
might  be  convicted  and  fined  in  a  large  amount  for  the  same 
act  which  in  another  place  or  at  another  time,  would  be  held 
to  be  no  breach  of  the  law,  and  what  might  be  thought  a  fair 
and  reasonable  rate  on  one  road  might  be  thought  otherwise 
upon  another  road.  There  would  be  no  certainty  of  being 
able  to  comply  with  the  law.  A  railroad  corporation,  with  the 
purpose  of  conforming  to  the  law,  might  fix  its  rates  at  what  it 
believed  to  be  reasonable,  and  yet  be  subjected  to  the  heavy 
penalties  here  prescribed.  The  statute  furnishes  evidence  that 
it  did  not  intend  to  leave  the  railroad  in  this  state  of  uncertainty 
and  danger,  and  exposed  to  such  seeming  injustice.  The 
eighth  section  provides  how  reasonable  rates  shall  be  ascer- 
tained, what  they  shall  be,  and  that  the  railroad  and  warehouse 
commissioners  for  each  of  the  railroad  corporations  in  the  State 
a  schedule  of  reasonable  maxinr'-n  rates  thus  furnishing  a  uni- 
form rule  for  the  guidance  of  the  railroad  companies.  These 
authorities  and  the  argument  abundantly  supporting  them  are 
sufficient. 

"Other  objections  to  the  judgment  below  need  not  be  dis- 
cussed, as  the  one  noted  is  fatal,  and  the  statute  cannot  be  en- 
forced as  a  penal  statute."85 

In  the  aggregate  the  foregoing  authorities  prove  and  dem- 

•Louisville  &  N.    R.   Co.   v.   Commonwealth,   36  S.   W.    Rep.   129-131. 

4OO 


STATUTORY   UNCERTAINTY   AND   CONSTRUCTIVE   OFFENSES. 

onstrate  that  though  often  neglected,  the  ancient  maxim  "Ubi 
jus  incertum,  ibi  jus  nullum"  (Where  the  law  is  uncertain,  there 
is  no  law),  is  still  a  fundamental  part  of  our  jurisprudence, 
and  that  in  consequence  all  uncertain  penal  statutes  are  uncon- 
stitutional because  not  constituting  "due  process  of  law." 

Since  the  foregoing  essays  were  first  published  by  me, 
several  cases  have  been  decided  or  come  to  my  notice  which 
are  more  or  less  related  to  the  principle  for  which  contention 
is  herein  made.  These  cases  are  cited  in  the  footnote.fr  7 


»Mc 


Junkins  vs.  State,  10  Ind.  145  (A.  D.  1858).  — 


401 


CHAPTER  XXII. 

"DUE  PROCESS  OF  LAW"  IN  RELATION  TO 

STATUTORY  UNCERTAINTY  AND 

CONSTRUCTIVE  OFFENSES. 

PART  V.—  The  Synthesis  and  the  Application* 

In  the  foregoing  chapters,  I  justified  with  considerable 
elaboration  the  proposition  that  in  the  United  States  no  man 
can  be  punished  for  mere  constructive  offenses. 

I  have  gone  further  and  have  attempted  to  formulate  a 
statement  of  the  nature  of  law  as  viewed  in  the  scientific  as- 
pect, in  contradistinction  to  that  arbitrary  power  which  pun- 
ishes constructive  offenses,  and  I  have  undertaken  to  make 
a  comprehensive  discussion  as  to  what  is  a  constructive  of- 
fense in  relation  to  "due  process  of  law."  Here  I  shall  un- 
dertake only  to  summarize  those  conclusions,  already  justified  in 
various  ways,  and  apply  them  to  our  laws  against  "obscene" 
literature  and  art. 

CONSTRUCTIVE  CRIMES  CLASSIFIED. 

Constructive  offenses  naturally  divide  into  two  general 
classes.  In  the  first  of  these  the  more  direct  responsibility  for 
the  prohibited  construction  rests  with  the  courts,  and  arises 
from  the  judicial  engraftments  made  upon  legislative  enact- 
ments, while  the  second  class  includes  those  where  the  more 
direct  responsibility  for  the  evil  primarily  rests  with  the  legis- 
lature for  having  attempted  to  construct  a  wrong,  by  penal- 
izing conduct  not  in  itself  injurious  nor  of  injurious  tenden- 
cies according  to  any  known  laws  of  the  physical  universe. 
These  two  general  classes  of  constructive  crime  readily  lend 
themselves  to  a  further  subdivision  according  to  the  various 
conditions  which  conduce  to  such  baneful  punishments  for 
mere  constructive  wrongs.  These  different  sources  of  such 
error  will  now  be  pointed  out  with  a  little  more  system  and 
elaboration,  and  it  is  believed  that  the  following  statements 
are  justified  by,  and  generalize  all,  that  is  included  in  the  dis- 

•Revised  from  The  Central  Law  Journal,  Dec.  18th,1908.  j 

4O2 


STATUTORY   UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

cussion  and  the  authorities  cited  in  the  several  chapters  on 
"due  process  of  law." 

JUDICIAL    LEGISLATION    UNDER    PRETENSE    OF    INTERPRETATION. 

The  first  class  of  constructive  offenses  is  best  understood. 
Here  the  act  under  investigation  is  one  which  under  any  of 
the  tests  prescribed  hereafter,  may  properly  be  penalized,  but 
it  is  not  within  the  plain  letter  of  the  prohibitive  statute  be- 
cause the  statutory  tests  of  criminality,  though  certain  in 
meaning  and  covering  acts  of  the  same  general  character,  man- 
ifestly do  not  specifically  include  the  conduct  under  investiga- 
tion. In  such  a  case  the  judicial  enlargement  of  the  field 
plainly  marked  out  by  the  statute  is  so  universally  recognized 
as  improper,  because  judicial  legislation,  and  therefore  within 
the  domain  of  the  prohibited  constructive  offenses,  as  to  need 
no  argumentative  support.  Indeed,  all  judicial  rules  for  the 
strict  construction  of  criminal  statutes  are  founded  upon  the 
necessity  of  precluding  judges  from  creating  law. 

If  the  act  penalized  by  the  statute  under  consideration 
is  assumed  to  be  one  which  may  be  penalized,  and  the  conten- 
tion herein  made,  namely,  that  none  of  the  judicial  tests  of 
"obscenity"  has  that  certainty  required  by  the  Constitution, 
is  held  good,  then  the  last  declared  principle  has  no  application. 
On  the  other  hand,  if  the  judicial  tests  of  "obscenity"  do  have 
the  certainty  required,  then  this  principle  still  does  annul  the 
law,  becauses  these  "tests"  of  guilt  are  clearly  of  judicial  cre- 
ation, extending  the  statute  beyond  what  the  words  of  the 
legislative  enactment  necessarily  imply. 

AMBIGUOUS  STATUTES. 

The  second  class  of  constructive  offenses  is  less  perfectly 
understood.  Here  the  act  under  investigation  is  again  one 
which,  under  any  of  the  tests  prescribed  hereafter,  may  prop- 
erly be  penalized,  but  the  statutory  language  is  ambiguous  in 
its  specification  of  the  criteria  of  guilt.  Such  statutes  often 
seduce  judges  into  an  abuse  of  their  power  by  a  misapplication 
of  rules  of  construction.  Where  the  words  descriptive  of  the 
crime  are  ambiguous  (open  to  several  interpretations,  some 
or  all  of  which  meanings,  taken  separately,  are  very  certain  in 
their  application  to  all  specific  facts),  it  is  erroneously  as- 
sumed by  many  courts  that  it  is  an  exercise  of  the  judicial 
function  of  statutory  interpretation  to  select  that  one  among 


403 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

all  the  possible  meanings  of  the  statute  which  is  to  be  en- 
forced. I  do  not  conceive  it  so.  The  judicially  selected  in- 
terpretation may  not  be  the  one  which  the  legislature  intended 
to  enact.  Certainly  it  has  not  received  the  specific  sanction 
of  the  legislative  branch  of  the  Government,  any  more  than 
every  other  possible  interpretation,  and  the  only  conduct  which 
can  with  certainty  be  known  to  be  within  the  legislative  pro- 
hibition (that  is,  within  the  law)  consists  of  those  acts  which 
are  clearly  within  every  possible  meaning  of  the  statute.  If  this 
rule  has  not  been  always  observed  in  the  matter  of  ambiguous 
statutes  it  is  because  judges  have  not  seen  clearly  the  true 
relation  between  such  ambiguity  and  the  law,  as  a  scientist 
must  view  it,  nor  the  distinction  between  judicial  legislation 
and  judicial  interpretation.  Very  many  of  the  prosecutions 
under  the  laws  in  question  have  resulted  merely  from  a  dif- 
ference of  opinion  between  the  prosecutor  and  some  sex-re- 
former as  to  which  of  the  speculative  meanings  of  "obscene" 
was  to  be  enforced.  It  is  an  outrage  that  these  defendants 
were  never  given  the  benefit  of  the  doubt. 

UNCERTAIN  STATUTES. 

The  third  class  of  these  prohibited  constructive  offenses 
consists  of  those  where  definite  description  of  the  crime  is 
wholly  wanting  (uncertainty  as  distinguished  from  mere  am- 
biguity), because  there  is  total  absence  of  any  certain,  clear, 
universal  and  decisive  tests  of  criminality.  Then  we  have  a 
case  for  the  application  of  the  old  maxim :  "Where  the  law  is 
uncertain  there  is  no  law."  In  such  a  case,  if  the  Court  should 
supply  the  tests  of  criminality  so  indispensable  to  the  enforce- 
ment of  every  statute,  those  tests  would  not  have  the  sanction 
of  the  legislative  branch  of  the  Government,  and  therefore 
could  not  be  the  law,  in  any  criminal  case.  Supplying  these 
tests,  or  criteria  of  guilt,  is  therefore  clearly  a  matter  of 
judicial  legislation,  by  means  of  statutory  interpolation,  as  dis- 
tinguished from  interpretation,  and  punishment  thereunder  is 
punishment  for  a  constructive  offense,  and  not  due  process 
of  law. 

If  in  a  criminal  case  a  Court  should  undertake  to  enforce 
upon  any  person  a  judgment  which  did  not  conform  to  gen- 
eral, uniform  and  certain  rules  of  conduct  having  an  exact, 
verbally  formulated  existence,  which  were  wholly  created  by  the 
legislative  department,  and  therefore  existing  outside  the  mere 

404 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

will  of  the  Court,  and  well  known  or  easily  accessible  to  all 
prior  to  the  inception  of  the  cause  of  action  then  before  the 
Court — I  say,  if  a  Court  should  undertake  to  enforce  any- 
thing different  from  such  a  law,  it  would  not  be  enforcing  the 
law  at  all,  and  to  submit  to  such  penalties  would  be  submis- 
sion to  a  government  by  the  arbitrary  and  despotic  will  of  the 
judiciary,  and  not  in  any  sense  would  this  be  a  government 
according  to  law,  and  this  must  always  be  the  case  where  the 
statutory  criteria  of  guilt  are  uncertain.  Criminal  punishment 
under  such  circumstances  would  be  punishment  for  construct- 
ive crimes,  and  not  due  process  of  law. 

This  is  perhaps  the  most  appropriate  place  to  quote  a  few 
opinions  in  which  this  principle  has  been  applied  to  statutes, 
similar  at  least  in  the  nature  of  the  uncertainty  of  their  criteria 
of  guilt,  sometimes  resulting  merely  in  the  discharge  of  the  de- 
fendant, and  at  others  in  the  more  specific  annulment  of  the 
statute. 

INSTRUCTIVE  PRECEDENTS. 

The  highest  court  of  the  State  of  Indiana  has  left  us  two 
instructive  opinions.  The  court  is  construing  a  statute  against 
"notorious  lewdness  or  public  indecency."  No  question  of  the 
constitutionality  of  the  statute  was  before  the  court,  yet.  after 
reviewing  English  authorities,  the  court  continues  its  reflections 
thus:  "It  would  therefore  appear  that  the  term  'public  in- 
decency' has  no  fixed  legal  meaning — is  vague  and  indefinite, 
and  cannot  in  itself  imply  a  definite  offense.  And  hence,  the 
courts,  by  a  kind  of  judicial  legislation,  in  England  and  the 
United  States,  have  usually  limited  the  operation  of  the  term  to 
public  displays  of  the  naked  person,  the  publication,  sale  or 
exhibition  of  obscene  books  and  prints,  or  the  exhibition  of  a 
monster — acts  which  have  a  direct  bearing  on  public  morals, 
and  affect  the  body  of  society.  Thus  it  will  be  perceived  that 
so  far  as  there  is  a  legal  meaning  attached  to  the  term,  it  is 
different  from  and  more  limited  than  the  commonly  accepted 
meaning  given  by  Webster  to  the  word  indecency.  A  statute 
relative  to  a  misdemeanor  of  the  grade  and  character  of  this, 
and  prescribing  so  severe  a  penalty  as  the  deprivation  of  lib- 
erty by  imprisonment,  ought  to  be  clearly  worded,  so  as  to 
leave  no  doubt  or  ambiguity  about  its  meaning,  before  it  should 
be  construed  to  include  a  large  and  undefined  class  of  offenses 
against  morality.  *  *  *  This  statute,  under  such  circum- 

405 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

stances,  should  be  in  itself  explicit,  and  should  not  depend  for 
vitality  upon  another  act  defining  the  meaning  of  words.  *  * 
If  the  statute  is  given  the  broad  construction  contended  for 
by  the  prosecution,  who  is  to  determine  what  phrases  amount 
to  an  offense  under  it  ?  Is  the  public  sentiment  of  each  locality 
to  be  reflected  through  the  jury?"87  Conviction  reversed  be- 
cause act  not  within  the  statute,  that  being  all  that  was  before 
the  court. 

The  next  case  was  an  appeal  from  a  conviction  under  a 
statute  against  heavy  hauling  on  turnpike  roads.  The  statute 
was  held  void  for  uncertainty,  and  the  court  said :  "The  lan- 
guage of  a  criminal  statute  cannot  be  extended  beyond  its 
reasonable  meaning,  and,  whenever  the  court  entertains  a 
reasonable  doubt  as  to  the  meaning,  the  doubt  must  be  re- 
solved in  favor  of  the  accused.  The  court  must  expound  what 
it  finds  written,  and  cannot  import  additional  meaning  with- 
out sufficient  indication  thereof  in  the  words  of  the  statute, 
with  such  aids  thereto  as  the  established  rules  of  law  author- 
ize. *  *  *  Where  the  terms  of  the  statute  are  so  uncer- 
tain as  to  their  meaning  that  the  court  cannot  discern  with 
reasonable  certainty  what  is  intended,  it  will  pronounce  the 
enactment  void.  *  *  *  There  must  be  some  certain  stand- 
ard by  which  to  determine  whether  an  act  is  a  crime  or  not/'88 

In  another  place  I  find  a  quotation  to  the  point,  but  the 
original  source  of  which  I  do  not  know  with  certainty.  From 
the  connection  in  which  it  is  published,  I  infer  that  it  is  quoted 
from  an  unofficial  report  of  the  remarks  of  the  late  Judge 
Lowell,  of  Boston,  while  imposing  a  nominal  fine  upon  one 
Jones,  who  had  pleaded  guilty  to  distributing  Clark's  Mar- 
riage Guide  through  the  mails.  This  is  of  course  unofficial, 
but  its  logic  is  incontrovertible. 

"Crime  should  be  so  clearly  defined  that  there  can  be  no 
mistaking  it;  murder,  homicide,  arson,  larceny,  burglary,  for- 
gery, are  so  defined  that  they  cannot  be  misunderstood.  If 
obscenity  is  a  crime  punishable  by  fine  and  imprisonment,  it 
ought  to  be  so  clearly  described  that  we  may  know  in  what  it 
consists,  and  that  accused  persons  may  not  be  at  the  mercy 
of  a  man  or  a  number  of  men  who  construe  what  is  obscene, 
indecent  or  immoral  by  their  own  special  opinion  or  notion  of 

morality  or  immorality.    What  is  obscene  to  one  man  may  be 
K  * 

«Cook  vs.   State,  59  N.  E.   (Ind.)   489-490   (1901) 
TRequoted  from  Heywood's    Defense,  p.   29. 

406 


STATUTORY   UNCERTAINTY   AND   CONSTRUCTIVE   OFFENSES. 

pure  as  mountain  snow  to  another.  One  man  should  not  and 
cannot  decide  for  other  men."8* 

In  another  case  a  similarly  vague  statute  made  it  a  mis- 
demeanor to  "commit  any  act  injurious  to  the  public  health,  or 
public  morals,  or  the  perversion  or  obstruction  of  public  justice 
or  the  due  administration  of  the  law."  The  court  said :  "We 
cannot  conceive  how  a  crime  can,  on  any  sound  principle,  be 
defined  in  so  vague  a  fashion.  Criminality  depends,  under  it, 
upon  the  moral  idiosyncrasies  of  the  individuals  who  compose 
the  court  or  jury.  The  standard  of  crime  would  be  ever  vary- 
ing, and  the  courts  would  constantly  be  appealed  to  as  the 
instruments  of  moral  reform,  changing  with  all  fluctuations  of 
moral  sentiment.  The  law  is  simply  null.  The  Constitution, 
which  forbids  ex  post  facto  laws,  could  not  tolerate  a  law  which 
would  make  an  act  a  crime,  or  not,  according  to  the  moral 
sentiment  which  might  happen  to  prevail  with  the  judge  or 
jury  after  the  act  had  been  committed."9* 

One  United  States  Court,  although  not  asked  to  do  so,  has 
all  but  declared  the  postal  laws  against  "obscene"  literature  to 
be  unconstitutional — as  the  necessary  result  of  their  uncer- 
tainty. 

"We  have  been  taught  to  believe  that  it  was  the  greatest 
injustice  toward  the  common  people  of  old  Rome  when  the 
laws  they  were  commanded  to  obey,  under  Caligula,  were 
written  in  small  characters,  and  hung  upon  high  pillars,  thus 
more  effectually  to  insnare  the  people.  How  much  advantage 
may  we  justly  claim  over  the  old  Romans,  if  our  criminal 
laws  are  so  obscurely  written  that  one  cannot  tell  when  he 
is  violating  them?  If  the  rule  contended  for  here  is  to  be 
applied  to  the  defendant,  he  will  be  put  upon  trial  for  an  act 
which  he  could  not  by  perusing  the  law  have  ascertained  was 
an  offense.  My  own  sense  of  justice  revolts  at  the  idea.  I 
cannot  give  it  my  sanction.  *  *  *  The  indictment  is  quashed, 
and  the  defendant  is  discharged."^ 

LEGISLATIVE  PENALIZING  OF  MERE  CONSTRUCTIVE  INJURIES. 

Fourth:  It  follows  from  the  fact  that  human  justice  and 
a  secular  state  can  deal  only  with  material  factors,  that  an  of- 
fense to  be  real  and  not  merely  constructive  must  be  condi- 

»Ex  parte  Andrew  Jackson,   45  Ark.   164.  ( I  ^; 

<f| — -«°U.   S.  v.  Commerford,  25  Fed.   Rep.  904.   West  Dist.   of  Tex. 
Pub.    Weekly,   p.   1218,  dated  April  81,  190«. 

407 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

tioned  upon  a  demonstrable  and  ascertained  material  injury, 
or  upon  the  imminent  danger  of  such,  the  existence  of  which 
danger  is  determined  by  the  known  laws  of  the  physical  uni- 
verse. Our  Constitution,  both  in  its  guarantee  of  freedom  of 
speech  and  press,  and  in  its  guarantee  of  due  process  of  law 
(as  we  must  understand  the  law,  according  to  the  scientific 
viewpoint),  precludes  the  construction  of  mere  psychologic 
crimes.  The  offenses  which  are  based  only  upon  ideas  ex- 
pressed or  otherwise,  such  as  constructive  treason,  witchcraft, 
and  heresy,  either  religious  or  ethical,  and  all  kindred  psycho- 
logic or  other  constructive  crimes,  are  prohibited,  because  the 
very  nature  of  the  law  whose  supremacy  and  processes  our 
Constitution  guarantees  is  such  that  American  legislators  can- 
not be  permitted  to  predicate  crime  upon  mere  psychologic 
factors.  Manifestly  this  does  not  preclude  punishment  when 
these  psychologic  factors  have  ceased  to  be  merely  such,  by 
having  resulted  in  actual  material  injury  as  distinguished  from 
constructive  and  speculative  injury.  For  example,  it  does  not 
preclude  punishment  in  cases  of  personal  libel,  which  has  re- 
sulted in  material  injury,  or  where  the  uttered  opinion  has  re- 
sulted in  actual  crime,  under  such  circumstances  as  to  make 
one  an  accessory  before  the  fact,  or  as  to  prove  a  conspiracy  to 
secure  its  commission. 

Furthermore,  if  the  State  should  be  permitted  to  penalize 
an  act  which  is  not  an  essential  element  in  doing  violence  to 
that  natural  justice  which  can  deal  only  with  material  and 
physical  factors,  such  a  statute  could  not  be  one  enacted  in 
the  furtherance  of  the  governmental  purpose  to  establish  jus- 
tice (material  justice),  and  therefore  such  a  law  could  not  be 
within  the  legitimate  province  of  such  a  government  as  we 
profess  to  maintain.  Furthermore,  such  a  statute,  penalizing 
an  act  which  is  not  an  essential  element  in  violating  natural 
justice,  must  in  itself  be  the  creation  of  an  injustice — that  is, 
it  must  in  itself,  and  from  its  very  nature,  authorize  an  in- 
vasion of  liberty,  unwarranted  by  any  necessity  for  defending 
natural  justice,  or  maintaing  the  greatest  liberty  consistent 
with  equality  of  liberty,  and  therefore  the  enforcement  of  such 
a  statute  would  be  the  deprivation  of  liberty  without  due  pro- 
cess of  law,  as  we  must  understand  "law"  if  we  view  it  in  the 
scientific  sense.  I  conclude  that  every  such  statute  as  I  have 
last  hereinabove  described  is  also  an  attempt  to  punish  for  a 


408 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

^constructive  offense — is  a  violation  of  our  constitutional  guar- 
antee of  due  process  of  law. 

DIFFICULTY    IN    THE  APPLICATION. 

It  hardly  seems  possible  that  there  can  be  much  conflict 
of  opinion  about  the  foregoing  generalities.  The  differences 
of  opinion  I  apprehend  will  arise  chiefly  when  we  come  to 
make  deductions  therefrom  for  application  to  some  particular 
statute,  and  the  result  comes  in  conflict  with  our  moral  senti- 
mentalism.  Under  such  circumstances  we  are  all  predisposed 
to  error,  because  our  emotions  will  necessarily  blur  our  intel- 
lectual insight  as  to  the  difference  between  certainty  in  the 
very  words  of  the  statute,  and  a  strong  feeling-certitude  within 
us  that  the  legislature  must  have  meant  to  prohibit  exactly 
what  we  feel  that  it  ought  to  have  prohibited.  Thus  moved 
by  our  feelings,  just  to  the  extent  that  they  are  intense,  we 
shall  be  certain  to  read  our  feeling-convictions  into  the  statutes, 
which,  often  by  reason  of  their  very  uncertainty,  readily  lend 
themselves  to  this  dangerous  and  almost  inevitable  evil  of  ju- 
dicial penal-legislation.  If  this  evil  can  be  avoided  it  will  be 
only  because  our  intellectual  development  is  of  that  superior 
order  which  dominates  the  feelings,  without  ever  being  over- 
come by  them,  and  which  at  the  same  time  enables  us  to  pos- 
sess an  illuminated  view  of  the  point  of  contact  and  division 
between  judicial  (so  called)  statutory  construction  and  a  ju- 
dicial usurpation  of  the  legislative  function,  under  the  guise 
of  statutory  interpretation.  These  considerations  seem  to 
make  it  desirable  that  the  foregoing  principles  be  more  elab- 
orately restated  with  some  special  attention  to  the  factors 
which  necessarily  imply  unconstitutional  uncertainty  and  form 
the  tests  by  which  statutes  will  be  adjudged  to  be  uncertain, 
and  consequently  a  nullity.  Thus  we  shall  still  further  clarify 
our  intellect  and  fortify  ourselves  against  the  dangerous,  lib- 
erty-destroying tendency  to  punish  for  constructive  offenses. 

PENALIZING    ABSTRACTIONS    AND     EMOTIONS. 

If  the  legislative  verbiage  in  a  criminal  enactment  is  so 
involved  as  to  make  its  significance  doubtful,  or  if  the  offense 
is  bunglingly  described  by  words  which  symbolize  and  general- 
ize only  a  subjective  (emotional)  state,  associated  in  the  minds 
of  different  persons  with  a  variety  of  mere,  peculiarly  personal, 
abstractions  incapable  of  an  accurate,  concrete  definition  that 


409 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

is  uniformly  applicable  to  every  conceivable  case,  and  decisive 
beyond  all  speculative  doubt,  then,  in  either  event,  that  enact- 
ment must  be  declared  a  nullity,  because  "where  the  law  is 
uncertain  there  is  no  law."  If  courts  were  allowed  to  decide 
which  of  possible  or  conflicting  descriptions  is  to  be  made 
effective  and  which  annulled,  or  were  allowed  to  create  the 
criteria  of  guilt,  when  the  legislature  has  failed  to  do  so,  this 
would  be  judicial  legislation.  The  legislature  having  furnished 
no  exact  material  for  definition,  the  courts  can  declare  only 
that  to  be  the  law  which  its  judges,  in  the  exercise  of  legislative 
discretion,  believe  ought  to  be  the  law.  Instead  of  deriving 
that  legislative  intent  exclusively  by  deductions  made  from 
the  legislative  language,  the  judges  of  necessity  read  their  own 
personal  desires  into  the  statutes  and  dogmatically  declare 
these  to  have  been  the  legislative  intent. 

The  judicial  power  over  criminal  statutes  must  be  limited 
to  a  mere  re-declaration,  or  restatement  of  that  which,  to 
every  intelligent  person,  is  already  definitely  and  clearly  mani- 
fest from  the  actual  words  of  the  enactment,  and  from  these 
alone.  If  it  requires  more  than  this  to  make  the  statute  en- 
forcible,  or  applicable  to  a  particular  case,  then  the  statute  is 
a  nullity  under  the  maxim,  "Where  the  law  is  uncertain,  there 
is  no  law."  To  do  less  than  this,  for  every  word  used  in  the 
enactment,  or  to  do  more  by  importing  and  engrafting  into  a 
criminal  statute  facts  and  phrases  not  actually  placed  there  by 
the  legislative  body,  is  again  a  judicial  usurpation  of  the  power 
to  enact  criminal  legislation. 

It  follows  that  if  those  words  which  alone  are  actually 
employed  in  the  statute  do  not  unavoidably  import  such  an 
exact  definition  that  every  man  of  average  intelligence,  by  the 
use  of  the  statutory  definition  alone,  can  determine  with  math- 
ematical certainty  whether  a  particular  act  is  a  crime  (or  a 
particular  book  is  obscene),  then  the  legislative  body  has  failed 
to  create  a  criminal  "law"  and  the  court,  being  without  legis- 
lative power,  has  nothing  to  execute,  but  must  declare  the 
pretended  statute  a  nullity,  because,  "Where  the  law  is  un- 
certain, there  is  no  law." 

STATUTORY    WORDS    MUST    SYMBOLIZE   DEFINITE    AND    UNIFORM 

CONCEPTS. 

Not  quite  identical  with  the  foregoing  proposition  is  this 
truism:  The  power  of  courts  is  limited  to  deductions  made 

410 


STATUTORY    UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

from  the  legislative  words;  that  is,  the  general  concept  sym- 
bolized by  the  statutory  words  may  be  made  concrete  to  de- 
termine if  the  specific  act  is  necessarily  included  in  the  legisla- 
tive general  conception,  as  that  is  exclusively  revealed  in  the 
legislative  language.  In  other  words,  the  court  cannot  create 
such  a  concept  where  the  legislative  word-symbols  do  not  stand 
for  definite  concepts.  That  again  would  be  judicial  legislation, 
not  interpretation,  because,  "where  the  law  is  uncertain  there 
is  no  law,"  and  a  law  which  requires  this  to  make  it  effective 
is  void. 

If  courts  can  be  credited  with  any  power  to  construe  penal 
statutes,  the  occasion  and  subject-matter  of  construction  must 
be  found  solely  in  the  ambiguity  of  the  word-symbols  used  in 
the  criminal  statutes  and  not  in  the  translation  of  the  interpo- 
lated ideas  of  the  judge.  The  latter  is  an  act  of  judicial  legis- 
lation, under  the  guise  of  interpreting  the  indefinable  nature 
of  that  which  the  legislative  words  in  fact  do  symbolize. 
Any  other  rule  would  authorize  arbitrary  ex  post  facto  judicial 
legislation  and  punishment,  and  where  the  legislative  word- 
symbols  do  not  stand  for  definite  concepts  the  enactment  is  a 
nullity  because  "where  the  law  is  uncertain  there  is  no  law." 

To  clarify  our  minds  let  this  be  restated  in  another  way. 
When  the  word-symbols  descriptive  of  the  crime  do  not  stand 
for  definite  or  concrete  concepts,  nor  any  sense-perceived,  ob- 
jective quality  or  activity  of  matter,  of  present  or  past  exist- 
ence, but  represents  to  each  individual  only  a  subjective  rela- 
tion between  his  own  purely  personal  experiences,  or  the 
abstractions  made  from  them,  and  his  purely  personal  emotions 
of  approval  or  disapproval,  then  the  words  used  to  describe 
this  subjective  condition  must,  because  of  its  abstractions  and 
emotional  element,  ever  making  it  personal  and  individual, 
always  elude  accuracy  of  definition,  and  the  law  is  void  "be- 
cause where  the  law  is  uncertain  there  is  no  law." 

Whenever  we  neglect  the  requirement  that  every  crime 
must  be  predicated  upon  some  actual  sense-perceivable  and 
proven  material  injury,  or  the  imminent  danger  of  such,  deter- 
mined to  be  imminent  by  the  known  laws  of  the  physical  uni- 
verse, and  therefore  accurately  definable  and  so  defined  in  the 
statute — I  say,  whenever  we  abandon  these  requirements, 
we  are  condemning  men  on  mere  metaphysical  speculations 
about  unrealized  psychologic  tendencies,  or  according  to  the 


411 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

personal  ethical  sentimentalizing,  whim,  caprice,  malice,  etc., 
etc.,  on  the  part  of  those  charged  with  the  execution  of  the 
law,  and  thus  the  judge  arrogates  to  himself  the  role  of  legis- 
lator; and  under  such  enactments  convictions  are  never  se- 
cured according  to  the  uniform  express  authority  of  any 
statute,  and  all  such  convictions  inflict  punishment  for  mere 
constructive  injuries  and  are  an  unconstitutional  deprivation 
of  liberty  and  property  because  not  "due  process  of  law/' 
This  error,  I  repeat,  is  one  easily  made  if  we  are  but  careless 
about  the  proper  different  attitudes  of  mind  which  should 
characterize  our  outlook  upon  penal  statutes  and  those  of  a 
civil  nature  which  declare  and  enforce  only  natural  justice;  or 
if  our  vision  is  clouded  as  to  the  difference  between  deduc- 
tions made  from  the  statutory  phrases  and  our  feeling-convic- 
tions read  into  statutes,  made  hospitable  thereto  because  un- 
certain, and  therefore  containing  little  or  no  limitation  upon 
the  reading-in  process. 

Under  our  system  (especially  that  of  the  Federal  Criminal 
law),  where  legislative  power  is  definitely  placed,  accurately 
limited,  and  incapable  of  transference  to  a  jury,  star-chamber, 
or  any  other  department  of  government,  and  where  in  addition 
ex  post  facto  laws  are  prohibited,  it  is  manifest  that  the  maxim 
against  uncertainty  in  statutes  must  be  treated  as  an  insep- 
arable, inalienable  and  inherent  part  of  that  liberty  of  the  citi- 
zens which  is  guaranteed  by  every  American  constitution. 
Without  certainty  before  the  fact,  as  to  what  is  the  law  in  re- 
lation to  it,  there  can  be  no  such  thing  as  "due  process  of  law" 
in  any  conviction.  If  the  criminal  statute  is  uncertain,  then 
courts  and  juries  become  legislators  after  the  fact,  if  any  en- 
forcement of  the  statute  is  had. 

It  follows  that  if  any  American  legislative  body  should 
create  a  crime  without  defining  it,  such  enactment  would  be  a 
nullity.  Should  an  attempt  be  made  to  penalize  the  commis- 
sion of  "screw-loos-ibus,"  without  defining  the  word,  such  a 
law  would  be  unen forcible  and  void.  It  is  intolerable  that 
courts  should  resort  to  current  history  and  therefrom  deduce 
meanings  to  be  read  into  a  penal  statute  whose  words  are  de- 
void of  all  definiteness  of  meaning.  By  such  a  process  the 
court  might  conclude  that  a  legislature  by  "screw-loos-ibus"  in- 
tended to  penalize  certain  unpopular  practices  of  "Christian" 
Scientists  or  Spiritualists.  If  courts  may  thus  speculate  in- 


412 


STATUTORY    UNCERTAINTY   AND   CONSTRUCTIVE   OFFENSES. 

ductively  from  current  history,  personal  emotions  and  preju- 
dices, and  read  the  result  into  penal  statutes  by  dogmatically  as- 
serting that  this  or  that  was  the  legislative  intent,  then  we  have 
re-established  judicial  despotism.  In  the  absence  of  a  generally 
known  and  accurately  definable  meaning  for  the  word,  an  en- 
forcement of  the  law  against  "screw-loos-ibus"  would  neces- 
sarily involve  the  exercise  of  legislative  power,  by  the  court 
or  jury  charged  with  its  execution,  and  this  enactment,  by  an 
unauthorized  delegation  of  legislative  power,  must  be  specially 
made  at  each  trial  to  cover  only  the  acts  then  under  investiga- 
tion and  must  always  be  ex  post  facto.  For  each  of  these 
reasons  a  law  which  in  its  practical  administration  necessarily 
involves  such  objections  must  be  judicially  annulled. 

If  a  criminal  law  is  so  vague  as  to  need  interpretation, 
then  it  should  be  declared  a  nullity  for  uncertainty.  Any  other 
course  necessarily  involves  on  the  part  of  the  interpreting^ 
judge  that  as  among  all  possible  meanings  he  exercise  his 
own  legislative  discretion  and  read  the  result  into  the  legis- 
lative intent  and  phraseology.  If  the  words  to  be  interpreted 
symbolize  emotions  as  their  only  element  of  unification,  and 
therefore  are  incapable  of  accurate  general  definition,  or  if  the 
materials  for  a  judgment  as  to  the  applicability  of  the  law  to 
every  conceivable  case,  are  varying  in  different  persons,  then 
to  allow  judges  or  juries  to  interpret  or  apply  such  a  doubtful 
statute  is  to  admit  their  authority  to  enforce  ex  post  facto  cri- 
teria of  guilt;  which  are  not  public  nor  general,  but  of  private 
origin  in  the  court,  and  particular  for  each  defendant. 

The  foregoing  speculations  suggest  all  that  has  occurred 
to  me  by  way  of  specifying  in  general  terms  the  principal 
sources  of  that  outrageous  remnant  of  absolutism  which  so 
often  results,  even  in  our  time  and  country,  in  the  damnable 
practise  of  punishing  men  for  mere  constructive  offenses.  The 
motive  for  these  wrongs  is  usually  a  stupid  moral  sentimental- 
ism  and  self -righteousness,  and  very  often  has  its  roots  in 
religious  superstitions  of  the  past.  The  remedy  can  be  found 
only  in  securing  judges  whose  intellectual  development  is 
such  as  to  make  them  true  scientists  of  the  law,  and  who  with 
clear  intellectual  insight  shall  combine  that  moral  courage 
which  will  make  them  dare  to  resist  the  "moral"  rant  of  a  pol- 
itically potent  but  intellectually  bankrupt  professional  re- 
former. I  am  sure  there  are  such  judges  and  that  with  per- 
sistance  and  diligence  they  can  be  found. 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 
THE  STANDARD  OF  CERTAINTY. 

The  standard  of  certainty  and  constitutionality  is  that  a 
criminal  statute  to  constitute  "due  process  of  law"  must  de- 
fine the  crime  in  terms  so  plain,  and  simple,  as  to  be  within  the 
comprehension  of  the  ordinary  citizen,  and  so  exact  in  mean- 
ing as  to  leave  in  him  no  reasonable  doubt  as  to  what  is  pro- 
hibited. Those  qualities  of  generality,  uniformity,  and  cer- 
tainty must  arise  by  an  unavoidable  necessity  out  of  the 
very  letter  of  the  definition  framed  by  the  law-enacting  power, 
and  not  come  as  an  incidental  result,  from  an  accidental  uni- 
formity in  the  exercise,  by  courts,  of  an  unconstitutionally 
delegated  legislative  discretion.  If  a  statute  defining  a 
crime  is  not  self-explanatory,  but  needs  interpretation,  or  the 
interpolation  of  words  or  tests  to  insure  certainty  of  meaning 
in  the  criteria  of  guilt,  then  it  is  not  the  law  of  the  land, 
because  no  such  judicial  test  of  criminality  has  ever  received 
the  necessary  sanction  of  the  three  separate  branches  of  legis- 
lative power,  whose  members  alone  are  authorized  and  sworn 
to  define  crimes  and  ordain  their  punishment.  Laws  defining 
crimes  are  required  to  be  made  by  the  law-making  branch 
of  government  because  of  the  necessity  for  limiting  and  de- 
stroying arbitrariness  and  judicial  discretion  in  such  matters. 
That  is  what  we  mean  when  we  say  ours  is  a  government 
by  laws  and  not  by  men.  It  follows  that  it  is  not  enough 
that  uniformity  and  certainty  shall  come  as  the  product  of 
judicial  discretion,  since  "law"  is  necessary  for  the  very  pur- 
pose of  destroying  such  discretion  in  determining  what  is 
punishable. 

In  chapters  13  to  17  inclusive  it  has  been  exhaustively 
shown  that,  whether  studied  from  the  viewpoint  of  abstract 
psychology,  sexual  psychology,  abnormal  psychology, 
ethnography,  juridical  history,  ethics  or  moral  sentimentalism, 
or,  considered  in  the  light  of  the  mutual  destructiveness  of 
the  judicially  created  criteria  of  guilt,  or  their  all-inclusive- 
ness  and  the  grotesqueness  resulting  from  their  general 
application,  in  every  aspect  we  find  absolute  demonstration 
that  the  statutes  against  "obscene"  literature  and  art  pre- 
scribe NO  criteria  of  guilt. 

In  chapters  18  to  22  inclusive  it  has  been  demonstrated 
that  the  maxim,  "where  the  law  is  uncertain  there  is  no  law," 
is  an  essential  ingredient  of  our  constitutional  guarantee  of 


414 


STATUTORY   UNCERTAINTY    AND   CONSTRUCTIVE   OFFENSES. 

"due  process  of  law,"  and  that  therefore  all  penal  statutes 
are  unconstitutional  if  they  do  not  prescribe  the  criteria  of 
guilt  with  such  precision  that  every  man  of  ordinary  under- 
standing may  know  with  absolute  certainty  whether  or  not 
his  proposed  conduct  is  a  violation  of  law. 

Co-ordinating  these  foregoing  propositions,  we  are  lead 
by  irresistible  logic  to  the  conclusion  that  all  statutes  herein 
under  investigation  are  void  for  the  uncertainty,  yes,  the 
total  absence,  of  criteria  of  guilt.  But,  in  the  determination 
of  these  issues,  WHEN  THE  CONFLICT  COMES  BETWEEN  LOGIC 

AND  LAW  ON  THE  ONE  SIDE  AND  MORAL  SENTIMENTALISM  ON 
THE  OTHER,  WHICH  WILL  CONTROL? 


415 


CHAPTER  XXIII. 

EX  POST  FACTO  CRITERIA  OF  GUILT  ARE 
UNCONSTITUTIONAL. 

Statement  of  Contention :  All  statutes  against  "obscene" 
''indecent,"  and  "disgusting"  literature  and  art  are  violative 
of  section  9,  article  1,  of  the  Federal  Constitution,  which 
provides  that  "No  *  *  *  *  EX  POST  FACTO  LAW  SHALL  BE  PASSED/' 
or  are  violative  of  similar  limitations  in  State  Constitutions. 

From  every  conceivable  viewpoint  it  has  now  been 
demonstrated  that  neither  these  statutory  vituperative  epithets 
against  "obscene,  indecent,  lewd,  lascivious,  or  filthy"  literature 
or  art,  nor  the  unconstitutional,  contradictory,  and  absurd  ju- 
dicial legislation  under  them,  afford  any  certainty  in  the  criteria 
of  guilt,  and  are  incapable  of  exact  or  literal  application,  or  of 
producing  uniformity  of  result.  From  this  it  follows  that 
every  conviction  under  these  mis-called  "laws"  is  according  to 
ex  post  facto  standards  of  judgment,  created  by  the  court  or 
jury,  during  the  trial  of  the  accused,  and  enacted  only  for  the 
one  case  of  the  defendant  then  being  prosecuted.  In  other 
words,  every  conviction  under  these  "laws"  has  been  demon- 
strated to  be  according  to  ex  post  facto  criteria  of  guilt.  The 
Congress  and  State  Legislatures,  being  inhibited  against  the 
passage  of  ex  post  facto  laws,  the  right,  thus  preserved  against 
legislative  infringement,  cannot  be  destroyed  by  the  trick  of 
authorizing  courts  to  enact  the  prohibited  ex  post  facto  criteria 
of  guilt.  Neither  does  it  make  any  difference  whether  the 
prohibited  legislative  power  is  directly  and  expressly  delegated 
to  the  courts  in  plain  terms,  or  is  indirectly  and  impliedly 
delegated,  by  leaving  uncertain  the  statutory  definition  of  the 
crime,  and  thus,  by  silent  implication,  conferring  upon  courts 
or  juries  the  seeming  duty  and  consequent  implied  authority, 
ex  post  facto,  to  enact  the  necessary  tests  of  criminality.  It 
must  be  a  self-evident  truism  that  no  American  legislative  body 
can  delegate  to  courts  any  legislative  power  to  define  crime, 
and  that,  even  if  such  general  authority  could  be  delegated,  it 
could  not  include  a  power  to  enact  ex  post  facto  criteria  of 

416 


EX  POST  FACTO  CRITERIA  OF  GUILT  ARE  UNCONSTITUTIONAL. 

crime.  Such  ex  post  facto  judicial  legislation  violates  every 
modern  conception  of  "law"  and  cannot  constitute  "due  process 
of  law."  What  the  legislative  department  is  prohibited  from 
doing  directly  it  cannot  do  indirectly,  by  a  clouded  attempt  to 
confer  upon  the  judicial  department  constitutionally-prohibited 
legislative  discretion,  nor  authorize  the  latter  to  enact  laws  of 
such  a  character  as  even  the  law-making  power  is  constitu- 
tionally prohibited  to  enact. 

In  the  light  of  what  has  preceded,  the  conclusions  herein- 
before expressed  would  seem  to  be  self-evident,  or  at  least  to 
be  in  no  need  of  any  further  direct  argumentative  support.  It 
may  be,  however,  that  some  comment  is  necessary  to  show  the 
bearing,  upon  these  propositions,  of  the  power,  in  libel  cases, 
sometimes  exercised  by  jurors,  to  be  judges  of  the  law  as 
well  as  of  the  fact. 

Our  acquaintance  with  the  law  of  evolution  enables  us  to 
deduce  some  accurate  knowledge  of  the  order  and  development 
of  events  in  our  juridical  history.  Thus  we  know  that  the 
growing  coherence  of  tribal  and  inter-community  life  was 
necessarily  expressed  in  rules  of  conduct  increasing  in  com- 
plexity, number,  and  definiteness  of  statement,  necessitating 
and  accompanying  an  unfolding  differentiation  of  the  functions 
of  the  court  from  those  of  other  officials,  and  the  development 
of  expertness  in  legal  lore,  eventually  resulting  in  the  differ- 
entiation of  the  functions  of  judge  and  jury.  Thus  we  came 
to  a  definite,  conception  of  the  right  to  enjoy  "liberty  under 
law,"  as  distinguished  from  liberty  by  permission  under 
despotism.  The  former  affords  at  least  to  every  person 
the  protection  of  precisely  stated,  and  knowable,  rules  of 
conduct,  the  observance  of  which  insures  absolute  freedom 
from  judicial  penalties.  This  conception  of  liberty  under  law 
was  crystallized  into  the  constitutional  guarantees  of  "due 
process  of  law,"  the  inhibition  against  ex  post  facto  laws,  and 
the  separate  lodgment  and  limitation  of  the  legislative 
authority. 

The  most  conspicuous  instance  of  judicial  atavism  is  in 
cases  of  criminal  libel,  where  the  jury  is  authorized  to  deter- 
mine the  law  as  well  as  the  facts.  The  immediate  purpose 
here  is  critically  to  inquire  into  the  origin,  justification,  and 
constitutional  bearing  of  this  anomaly  in  our  jurisprudence. 
So  far  as  my  researches  have  informed  me,  there  is  not  a 
single  judicial  opinion  wherein  the  considerations  which  seem 

417 


OBSCENE    LITERATURE    AND    CONSTITUTIONAL    LAW. 

to  me  most  important,  and  herein  to  be  urged,  were  brought 
to  the  attention  of  the  court,  or  considered  on  judicial  initiative. 
More  than  any  other  one  man,  Thomas  Erskine  is  responsible 
for  bringing  about  that  change  of  criminal  procedure  by  virtue 
of  which,  in  libel  cases  only,  jurors  became  judges  of  the  law 
as  well  as  of  the  facts.  In  order  that  we  may  rightly  appreciate 
the  bearing  of  this  anomaly  of  the  law  upon  our  own  consti- 
tutional problems,  we  must  study  his  motives,  his  arguments, 
the  judicial  reply,  and  the  final  outcome  of  the  issue,  by  the 
passage  of  the  Fox  Libel  Law.  In  the  famous  case  of  the 
Dean  of  St.  Asaph,  the  final  court-issue  was  made,  and 
Erskine's  motives  were  laid  bare  and  his  patient  research  and 
great  intellectual  acumen  produced  what  probably  is  the  best 
arguments  that  could  be  made  in  support  of  his  contention.  It 
is  these  that  we  will  now  consider  critically,  in  relation  to  their 
proper  influence  upon  present  issues. 

When  we  remember  the  history  of  the  infamous  Star 
Chamber  court,  and  the  other  outraging  judges  who  were  so 
servile  in  the  lawless  execution  of  the  will  of  their  tyrannous 
royal  master,  we  are  not  astonished  that  Erskine  should  have 
found  his  desire  for  making  jurors  judges  of  law  in  his  re- 
flections upon  "the  danger  which  has  often  attended  the  liberty 
of  the  press  in  former  times,  from  the  arbitrary,  dependent 
judges,  raised  to  their  situations  without  abilities  or  worth,  in 
proportion  to  their  servility  to  [royal]  power."1  "No  man  in 
the  least  acquainted  with  the  history  of  nations,  or  of  his  own 
country,  can  refuse  to  acknowledge,  that  if  the  administration 
of  criminal  justice  were  left  in  the  hands  of  the  Crown,  or  its 
deputies,  no  greater  freedom  could  possibly  exist  than  govern- 
ment might  choose  to  tolerate  from  the  convenience  or  policy 
of  the  day."2  In  the  United  States,  our  judiciary  has  never 
been  servile  to  an  appointing  power  in  such  a  manner  as,  on 
that  account,  to  make  it  specially  dangerous  to  liberty  of 
speech,  nor  so  as  to  make  it  specially  desirable  to  invest  juries, 
in  cases  of  criminal  libel,  with  authority  to  overrule  the  judges 
in  matters  of  law.  This  motive,  therefore,  does  not  now  exist 
for  desiring  to  maintain  an  anomaly  in  our  judicial  procedure, 
though  from  an  habitual  attachment  to  forms,  rather  than  an 
understanding  of  the  reasons  for  them,  we  have  in  practise 

lErskine's    Speeches,    Edition    1810,    V.    I,    p.    154. 
2Erskine's    Speeches,    Edition    1810,    V.    I,    p.    273. 


418 


•X  POST  FACTO  CRITERIA  OF  GUILT  ARE  UNCONSTITUTIONAL. 

continued  the  procedure  for  which  Erskine  so  ably  contended, 
long  after  the  reason  for  the  anomaly  has  ceased  to  exist. 

To  Erskine's  mind  no  other  practical  remedy  could  have 
presented  itself  for  restraining  the  arbitrary  power  of  a 
judiciary  that  was  always  servile  to  royal  tyrants,  no  other 
means  to  check  their  proneness  to  extend  constructive  treason 
by  judicial  legislation,  and  the  consequent  lawless  abridgment 
of  freedom  of  speech.  In  the  United  States  there  are  other 
available  means  of  subjecting  courts  to  a  reign  of  law,  and  of 
preserving  freedom  of  speech  as  the  condition  of  all  other 
liberties.  Frequent  elections  and  legislative  control,  under 
our  suffrage  system,  are  quite  as  effective  in  checking  judicial 
tyranny  as  a  jury  could  possibly  be.  This  reason  for  perpetua- 
ting an  anomaly  also  fails,  under  present  conditions.  No 
other  reasons  being  suggested  by  Erskine,  nor  by  observation, 
we  may  proceed  to  consider  his  legal  argument. 

Erskine's  first  reason,  offered  in  support  of  his  anomalous 
proposition  that  jurors  were  the  rightful  judges  of  the  law  as 
well  as  of  the  fact,  was  founded  upon  ancient  precedent.  He 
insisted  that  "it  is  but  as  yesterday,  when  compared  with  the 
ages  of  the  law  itself,  that  judges  *  *  *  *  have  sought  to  fasten 
a  limitation  upon  the  right  and  privileges  of  jurors,  totally 
unknown  in  the  ancient  times,"  and  by  retracing  far  enough 
the  juridical  history,  he  could  find  precedents  to  uphold  his 
contention. 

But  the  answer  to  this  argument  was  ready  at  hand  in  the 
fact  that  this  simple  judicial  method  had  long  been  outgrown. 
As  early  as  A.  D.  1174,  Henry  divided  the  Kingdom  into  six 
districts  and  assigned  three  itinerant  judges,3  and  the  differen- 
tiation of  the  functons  of  judge  and  the  jury,  at  least  as  early 
as  the  reign  of  Elizabeth,  had  been  crystallized  into  the  maxim, 
"Ad  quaestioncm  facti  respondent  jurat  ores,  ad  questionem 
juris  respondent  jndices"4  Mr.  Justice  Buller  said  the  conten- 
tion of  Mr.  Erskine  had  been  completely  abandoned  by  all  the 
profession  except  by  Mr.  Erskine.  He  added :  "I  do  not  know 
of  any  one  question  in  which  the  law  is  more  thoroughly 
settled."5  Lord  Mansfield  had  already  expressed  his  convic- 
tion that  such  a  contention  was  "perfectly  frivolous,"  and  that 
it  was  strange  he  should  be  contesting  points  now,  that  the 

3Debates  on  the  Grand  Remonstrance,  p.  9. 
^Erskine's  Speeches,  Edition  1810,  V.  I,  p.  221. 
BErskine's  Speeches,  Edition  1810,  V.  I,  p.  218. 

419 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL   LAW. 

greatest  lawyers  in  the  court  had  submitted  to  for  years  before 
he  was  born."6 

After  Erskine  had  harked  back  to  the  time  of  the  Saxon 
era  when  "the  whole  administration  of  justice,  criminal  and 
civil,  was  in  the  hands  of  the  people,  without  the  control  or 
intervention  of  any  judicial  authority,  delegated  to  fixed 
magistrates  by  the  crown,"7  he  could  not  but  acknowledge 
that  the  evolutionary  processes  had  wrought  changes.  He 
said:  "When  the  civilization  and  commerce  of  the  nation  had 
introduced  more  intricate  questions  of  justice,  *  *  *  *  the  rules 
of  property  in  a  cultivated  state  of  society  became  by  degrees 
beyond  the  compass  of  the  unlettered  multitude,  and  in  certain 
well  known  restrictions  undoubtedly  fell  to  the  judges;  yet 
more  perhaps  from  necessity  than  by  consent."8  But  he 
argued  that  these  products  of  evolution  should  not  be  acknowl- 
edged as  attaching  to  criminal  trials,  and  be  it  observed  that  in 
this  respect  he  recognized  no  difference  in  principal  between 
cases  of  criminal  libel  and  other  criminal  trials.  His  argument 
ran  thus:  "In  a  question  of  property  between  private  individ- 
uals, the  Crown  can  have  no  possible  interest  in  preserving 
the  one  to  the  other,  but  it  may  have  an  interest  in  crushing 
both  of  them  together,  in  defiance  to  every  principle  of  hu- 
manity and  justice,  if  they  should  put  themselves  forward 
in  a  contention  for  public  liberty,  against  a  government 
seeking  to  emancipate  itself  from  the  dominion  of  the  laws."9 
— "Where  is  the  analogy  between  ordinary  civil  trials,  between 
man  and  man,  where  Judges  can  rarely  have  an  interest,  and 
great  State  prosecutions,  where  power  and  freedom  are 
weighing  against  each  other,  the  balance  being  suspended 
by  the  servants  of  the  executive  Magistrate?"10 

It  will  be  observed  that  this  is  an  argument  which  might 
be  given  great  weight  if  addressed  to  a  body  vested  with 
legislative  discretion,  and  exhibits  to  us  the  motive  of  Erskine, 
rather  than  the  actual  practise  and  state  of  the  juridical 
evolution,  as  fixed  by  precedent. 

However,  Erskine  was  not  content  with  this  alone.  With 
great  intellectual  acumen  he  undertook  to  show  that  many 
of  the  judicial  opinions  which  were  in  seeming  conflict  with 

SErskine's  Speeches,  Edition  1810,  V.  I,  pp.  211-212. 
7Erskine's  Speeches,  Edition  1810,  V.  I,  p.  270. 
SErskine's  Speeches,  Edition  1810,  V.  I,  p.  272. 
^Erskine's  Speeches,  Edition  1810,  V.  I,  p.  273. 
lOErskine's  Speeches,  Edition  1810,  V.  I,  p.  254. 

42O 


5T  FACTO  CRITERIA  OF  GUILT  ARE  UNCONSTITUTIONAL. 

his  theory  were  in  fact  quite  consistent  therewith,  but  he  had 
to  admit  that  against  his  contention  there  existed  "undoubtedly 
the  sanction  of  several  modern  cases/'  and  he  added,  "I  wish, 
therefore,  to  be  distinctly  understood  that  I  partly  found  my 
motion  for  a  new  trial  in  opposition  to  these  decisions."11  The 
court,  however,  followed  the  precedent. 

One  more  of  Erskine's  arguments  must  be  mentioned. 
He  contended  that:  "A  verdict  on  an  indictment,  upon  the 
general  issue,  Not  Guilty,  universally  and  unavoidably  in- 
volves a  judgment  of  law  as  well  as  of  fact,  because  the 
charge  comprehends  both  and  the  verdict  is  co-extensive 
with  it/'12 

Because  the  court  can  not  hold  an  inquisition  on  the 
mental  processes  of  jurors  it  follows,  in  most  cases,  and 
especially  where  intent  is  an  element  of  crime,  that  a  verdict 
on  the  general  issue  inextricably  involves  questions  of  law, 
as  to  which  it  is  within  the  power  of  jurors  to  ignore  the 
instructions  of  the  court  and  with  impunity.  Erskine  argued 
that  because  of  the  existence  of  this  power  the  court  should 
acknowledge  a  claim  of  authority  in  the  jury  to  rejudge  the 
law,  as  a  matter  of  admitted  right. 

The  court,  however,  held  that  the  unavoidable  power  of 
jurors  to  ignore  the  law,  as  expounded  by  the  judge,  was  no 
reason  for  admitting  a  claim  of  such  authority  as  rightly 
vested  in  them.  Erskine  had  argued  that  "the  constitution 
never  intended  to  invest  judges  with  a  discretion  which 
cannot  be  tried  and  measured  by  the  plain  and  palpable 
standard  of  law."13  In  its  decision,  overruling  Mr.  Erskine's 
argument,  the  court  applied  the  same  limitation  to  the  discre- 
tion of  jurors.  Both  positions  are  unquestionably  correct  from 
the  viewpoint  of  all  who  believe  in  liberty  under  law.  The 
opinion  of  the  court  in  part  reads  as  follows:  "Miserable  is 
the  condition  of  individuals,  dangerous  is  the  condition  of 
the  State,  if  there  is  no  certain  law,  or,  which  is  the  same  thing, 
no  certain  administration  of  law  to  protect  individuals,  or  to 
guard  the  State.  *  *  *  *  What  is  contended  for?  That  the 
law  shall  be  in  every  particular  cause  what  any  twelve  men, 
who  shall  happen  to  be  the  jury,  shall  be  inclined  to  think, 
liable  to  no  review,  and  subject  to  no  control,  under  all 
the  bias  of  interest  in  this  town,  when  thousands  more  or  less 

HErskine's  Speeches,  Edition  1810,  V.  I,  p.  298. 
i2Erskine's  Speeches,  Edition  1810,  V.  I,  p.  309. 
iSErskine's  Speeches,  Edition  1810,  V.  I,  p.  331. 

42I 


OBSCENE   LITERATURE   AND   CONSTITUTIONAL    LAW. 

are  concerned  in  the  publication  of  newspapers,  paragraphs, 
and  pamphlets.  Under  such  an  administration  of  law,  no 
man  could  tell,  no  counsel  could  advise,  whether  a  paper  was 
or  was  not  punishable."1 

Thus  we  see  that  certainty  in  the  criteria  of  guilt  was 
even  then  held  to  be  an  essential  to  the  existence  of  "law" 
and  of  "due  process  of  law,"15  though  unfortunately  this 
essential  had  not  been  consistently  demanded.  Thus,  to  the 
end  of  promoting  certainty  and  uniformity  as  indispensable 
to  the  existence  of  law,  do  we  find  it  to  be  the  established 
practise  long  before  the  American  Revolution  that  courts, 
and  not  jurors,  are  the  expositors  of  the  law  and  that  in  all 
criminal  cases,  including  those  of  libel,  both  court  and  jury 
should  be  precluded  from  creating  the  criteria  of  guilt.  How- 
ever, under  the  special  conditions  existing  in  England,  and 
which  conditions  were  abolished  by  our  American  Constitu- 
tions, there  was  an  urgent  necessity  for  curtailing  the  power 
of  courts  in  the  matter  of  "interpreting"  the  inexcusably 
vague  "law"  of  libel.  To  give  to  juries  a  right  to  overrule 
the  judges'  conception  of  the  law  seemed,  and  was,  the  only 
practical  attainable  relief  under  then  existing  British  conditions. 
Accordingly  the  agitation  continued,  along  the  lines  mapped 
out  by  Erskine,  until  in  1792  the  Fox  Libel  Act  was  passed, 
which  in  all  cases  of  criminal  libel  gave  English  juries  author- 
ity to  be  judges  of  both  the  law  and  fact. 

From  the  foregoing  review,  it  must  be  apparent  that 
neither  on  principles  of  juridical  philosophy  nor  on  precedent, 
can  it  be  said  that  at  the  time  of  the  American  Revolution 
English  juries  had  acknowledged  authority  to  be  judges  of 
libel-law.  It  follows  that  Fox's  libel  law  was  not  merely 
declaratory,  but  a  distinct  atavic  innovation,  and  accordingly 
it  has  been  held  that  this  practise  never  became  a  part  of  the 
common  law  of  the  colonies.16  Even  if  this  were  otherwise, 
it  would  have  no  application  to  our  present  obscenity  laws, 
because  the  circulation  of  obscene  literature  was  not 
a  common-law  offense.17  Even  though  not  yet  universally 
admitted,  at  least  as  according  to  precedent  and  right  reason, 

"Erskine's  Speeches,  Edition  1810,  V.  I,  pp.  379-380. 

isin  the  "Grand  Remonstrance"  of  1641,  addressed  by  the  Long  Parliament 
to  the  King,  one  of  the  complaints  was  that  the  rules  of  common  law  which  had 
survived  through  centuries  of  comparative  barbarism,  had  lost  their  certainty. 
Debates  on  the  Grand  Remonstrance,  p.  236. 

i«Negley  vs.  Farroud,  60  Md.  178-180;  Com.  vs.  Blauding,  20  Mass.  (3  Pick) 
306. 

l7"Obscene   Literature  at   Common   Law."     Albany  Law  Journal,   May,  1907. 

422 


POST  FACTO  CRITERIA  OF  GUILT  ARE  UNCONSTITUTIONA] 

the  following-  principle  of  English  constitutional  law  as 
stated  by  De  Lolme  in  1773,  was  adopted  into  our  American 
Constitutions  as  a  natural  limitation  necessary  to  preclude 
judicial  despotism,  and  is  an  essential  element  of  our  "due 
process  of  law,"  and  in  all  cases  precludes  the  ex  post  facto 
creation  of  criteria  of  guilt,  even  by  juries. 

De  Lolme' s  pre-revolutionary  statement  of  the  principle 
of  the  English  Constitution  now  under  consideration,  is  as 
follows : 

"The  judicial  power  ought,  therefore,  absolutely  to  re- 
side in  a  subordinate  and  dependent  body — dependent,  not 
in  its  particular  acts,  with  regard  to  which  it  ought  to  be  a 
sanctuary,  but  in  its  rules  and  in  its  forms,  which  the  legis- 
lative authority  must  prescribe.  *  *  *  *  The  courts  and  their 
different  forms  must  be  such  as  to  inspire  respect,  but  never 
terror;  and  the  cases  ought  to  be  so  accurately  ascertained, 
the  limits  so  clearly  marked,  that  neither  the  executive  power, 
nor  the  judges,  may  ever  hope  to  transgress  them  with 
impunity.18 

CONCLUSION. 

The  foregoing  discussion,  and  the  discussions  and 
authorities  cited,  justify  the  following  conclusions:  At.  the 
time  of  the  separation  of  the  American  Colonies,  there  was 
no  such  crime  as  "obscene  libel"  distinct  from  blasphemy,  nor 
had  jurors  in  any  libel  case  the  authority  to  be  judges  of  the 
law  as  well  as  of  the  facts.  Under  the  common-law  and  "due 
process  of  law,"  neither  judges  nor  jurors  could  be  allowed 
to  create  the  criteria  of  guilt,  which  must  always  be  precisely 
defined  by  the  legislative  authority,  before  the  act  to  which 
it  is  applied.  It  would  be  beyond  the  constitutional  authority 
for  juries  to  penalize  acts  not  clearly  within  some  prior 
statutory  definition  of  crime,  or  for  them  to  create  such 
definition  where  the  legislature  had  failed  to  complete  that 
task,  as  in  the  case  of  "obscenity"  laws.  Although  the  legis- 
lature might  perhaps  authorize  the  jury  to  acquit,  even  where 
conduct  is  clearly  within  a  precisely  stated  legislative  test  of 
criminality,  yet  the  legislative  department  can  not  create,  nor 
directly  or  indirectly  authorize  court  or  jury  to  create  ex  post 
facto  standards  of  guilt,  and  the  attempt  to  confer,  upon 

^IWJ"»"T-!—  ™"!  ' -VT- 

-          •'•'-• 

!8De  Lolme.  The  Constitution  of  England,  pp.  121-122,  Bohn  Edition. 
First  published  in  Holland,  1773,  and  the  first  English  edition  published  m  1775. 

423 


OBSCENE  LITERATURE  AND  CONSTITUTIONAL  LAW. 

courts  or  juries,  such  prohibited  legislative  discretion,  is 
unconstitutional.  Accordingly  all  laws  against  "obscene" 
literature  or  art  are,  because  the  statutes  do  not  prescribe  the 
standards  of  criminality,  attempts  to  delegate  to  juries  the 
legislative  authority  to  create  ex  post  facto  criteria  of  guilt, 
and,  therefore,  are  void. 


424 


TABLE  OF  CASES  ARISING  UNDER  "OBSCENITY 
KINDRED  STATUTES 


AND 


ENGLISH. 
Reg.   vs.  Read,  Fortesque  98  (A. 

D.  1708; 
Kings    vs.    Curl,  2    Strange,   788 

(A.  D.  1727) 
Rex.  vs.  Benfield,  (1760)  2  Burrows 

980 
eg.   vs.    Grey,   4  Foster  &  Fin- 

lason,  73 
Rex.  vs.  Carlile,  3  B,  and  A.  167 
Rex.  vs.  Carlile,  i  Cox  C.  C.  229 
Regina  vs.  Hfcklin,  L.  R.  3  Q.  B. 

369 
Reg,  vs.  Wolverhampton,  18  L.  T. 

395 
Rex.  vs.  Vantandillo,  4  Maul  &  S. 

73 
Queen  vs.  Sanders  &  Hitchcock, 

(1875)  Vol.  I.,  L.  R.  Q.  B.  15 
Dugdale  vs.  Queen,  i  Ellis  &  Bl. 

435 
Regina  vs.  Bradlaugh,  L.  R.  3  Q. 

B.  Div.  607 
Regina  vs.  Bradlaugh,  L.  R.  2.  Q. 

B.  Div.  569 

Steel  vs.  Brannon,  L.  R.  7  C.  P.  261 
Rex.  vs.  Greevey,  i.  M.  &  S.  273 
WKegina    vs.    Grey,    4    Foster    & 
>*      Finlason  73 

U.  S.  SUPREME  COURT. 
Exparte  Jackson,    96   U.  S.   727. 
U.  S.  Chase,  135  U.  S.  255. 
In  re  Rapier,  143  U.  S.  no 

"  Dupree,  143  U.  S.  no 
Grim  vs.   U.  S.  156  U.  S.  604-15 

Sup.  Ct.  Rep.  470 
Rosen  vs.  U.  S.  161  U.  S.  29 
Swearingen  vs.  U.  S.  161  U.  S.  446 
Andrews  vs.  U.  S.  162  U.  S.  420 

aff.  58  Fed.  86 1 
Price    vs    U.    S.  165    U.   S.    311; 

17  Sup.  Ct.  Rep.  366. 
Dunlop  vs.  U.*  S.  165  U.  S.  486  ; 
17  Sup.  Ct.  Rep.  375-41  L.  Ed. 

Clearing  House  vs.    Coyne,    194 

U.  S.  497-5o8 

Burton  vs.  U.  S.  202  U,  S.  344 
School  of  Magnetic  Healing   vs. 

McAnnulty,  187  U.  S.  94 


INFERIOR  U.  S.  COURTS. 
U.  S.  vs.  Clayton,  2  Dillon,  219 

F.  C.  14814 
U.  S.  vs.  Foote,  Fed.   Case  No. 

15128-13  Blatch  C.  C.  R.  420 
U.   S.   vs.  One   Case  Steroscopic 

Slides,    i  Sprague  464 ;  Fed. 

Case,  No.  15927. 
U.  S.  vs.  Bott,  ii  Blatchford  C.  C. 

R.  346  ;   Fed.  Case  No.  14626 
U.  S.  vs.  Whitehead,  ii  Blatch  349 
U.   S.  vs.   Bennett,  16  Blatchford 

388  ;  F.  C.  14571. 
U.   S.   vs.    Whittier.    Fed.    Case, 

16688  (1878) 
U.   S.  vs.  Pratt,  2  Am.  L.  T.  R. 

228  ;  Fed.  C.  No.  16082 
U.  S.  vs.  Kelly ,  3  Sawyer,  566 ;  Fed. 

Case,  15514  (Prev.  &  Abort.) 
U.  S.  vs.  Nolke,  i  F.  R.  426 
U.  S.  vs.  Williams,  3  F.  R.  484 
Bates  vs.  U.  S.  10  Fed.  R.  92. 
U.  S.  vs.  Smith,  ii  F.  R.  664 
U.  S.  vs.  Loftis,  12  Fed.  R.  671 
U.  S.  vs.  Kaltmeyer,  16  F.  R.  760 
U.  S.  vs.  Gaylord,  17  F.  R.  438 
U.  S.  vs.  Hanover,  17  F.  R.  444 
U.  S.  vs.  Britton,  17  F.  R.  731 
U.  S.  vs.  Morris,  18  F.  R.  900 
U.  S.  vs.  Chesman,  19  F.  R.  497 
U.  S.  vs.  Commerford,  25  F.  R. 

902 

U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
Ex  parte 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 
U.  S.  vs. 


Thomas,  27  Fed.  682 
Chase,  27  Fed.  R.  807 
Bebout,  28  F.  R.  522 
Wightman,  29  F.  R.  636 
Slenker,  32  F.  R.  691 
Doran  32  F.  R.  76 
Harman,34  F.  R.  872. 
Mathias,*  F.  R.  892. 
Clarke,  37  F.  R.  106 
Davis,  38  F.  R.  326 
Clarke,  38  F.  R.  500 
Harman,  38  F.  R.  827 
Huggett,  40  F.  R.  636 
Wahll,  42  F.  R.  822 
Clark,  43  F-  R-  574- 
Bethea,  44  F.  R-  *°2 
Harman,  45  F.  R.  414 
Smith,  45  F.  R.  477 
Grimm,  45  F.  R.  558 


425 


CASES   ARISING    UNDER    "OBSCENITY"    AND    KINDRED   STATUTES. 


U.  S.  vs.  Durant,  46  F.  R.  753 
U.  S.  vs.  Grimm,  50  F.  R.  528 
U.  S.  vs.  Martin,  50  F.  R.  918 
U.  S.  vs.  Harman,  50  F.  R.  921 
U.  S.  vs.  Males,  51  F.  R.  41 
U.  S.  vs.  Wilson,  58  F.  R.  768 
U.  S.  vs.  Andrews,  58  F.  R.  861 
U.  S.  vs.  Warner,  59  F.  R.  355 
U.  S.  vs.  Adams,  59  F.  R.  •§676- 

677  Cpi 

U.  S.  vs.  Jarvis,  59  F.  R.  357 
U.  S.  vs.  Andrews,' Q9  F.  R.  36 1  * 
U.  S.  vs.  Nathan,  61  F.  R.  936 
U.  S.  vs.  Ling,  61  F.  R.  1001 
U.  S.  vs.  Re|d,  73  F.  R.  289 
U.  S.  vs.  Lamkin,  73  F.  R.  459-463 
U.  S.  vs.  Janes,  74  F.  R.  545 
U.  S.  vs   Brazeau,  78  F.  R.  464 
U.  S.  vs.  Timmons,  85  F.  R.  204  ; 

30  C.  C.  A.  79,  and  notes 
Saffer  vs.   U.  S.    31  C.  C.  A.  I.; 

87  F.  R.  329 

U.  S.  vs.  Tubbs,  94  F.  R.  356 
U.  S.  vs.  Clifford,  104  F.  R  296 
U.  S.  vs.  DeGignac,  113  F.  R.  197; 

C.  C.  A.  IfrLFV^J 
Konda  vs.  U.S.-HfrF.*  R*-, 
U.  S.  vs.  Harris,  122  F.  R.  551' 
U.  S.  vs.  Wyatc,  122  F.  R.  316 
Harvey  vs.  U.  S.  lay  Fad.  3^ 
U.  S.  vs.  Moore,  129  F.  R.  159 
U.  S.  vs.  Wroblenski,  118  F.  R.  49! 
U.  S.  vs.  Wroblenski,  129  F.  R.  162 
U.  S.  vs.  Coleman,  131  F.  R.  151- 

152  (N.  Y). 
U.  S.  vs.  Pupke,    133  F.   R.    243 

(Prev.). 
(U.   S.    vs.    Sherman — see    Com- 

stock's  Brief  33) 
Burton  vs.  U.  S.  142   F.  R   57  C. 

C.  A. 
Demoli  vs.  U.  S.    144  Fed.  363  C. 

C.  A. 

Rinker  vs.  U.  S.  151  Fed.  R.  755 
Hanson  vs.  U.  S.  157  F.  R.  749 
Shepard  vs.  U.  S.  160  F.  R.  584 
U.  S.  vs.  Macfadden,  165  F.  R.  51 
Knowlee  vs.  U.  S.  170  F.  R.  409 

ALABAMA 
Henderson  vs.  State,  63  Ala.  193 

CALIFORNIA 
Peop.  vs.  Zuell,  82  Pac.  1128 

CONNECTICUT 
Knowles  vs.  Conn.  (1808;  3  Day  103 

GEORGIA 

Dillard  vs.  State,  41  Ga.  279 
Montross  vs.  State,  72  Ga.  261 
Brigman  vs.  State,   123  Ga.  505  ;  f 

51  S.  E.  Rep  504 
State  vs.  Kelly,  55  S.  E.  Rep  482 
Redd  vs.  State,  67  S.  E.  709 


ILLINOIS 
People  vs.  McNair,  89  111.  441.     j: 

Cent.  Law  J.  235 
Fuller  vs.  People,  92  111.  182 

INDIANA 

Mcjunkin  vs    State,  10  Ind.  (1858)  f» .  ' 
Ardery  vs.  State,  56  Ind.  328 
Thomas  vs.  State,  2  N.  E.   Rep. 
808  ;  103  Ind.  419 

MASSACHUSETTS 

People  vs.  Holmes,  17  Mass.  336 

(1821) 

People  vs.  Tarbox.  i.  Cush,  66 
Com.  vs.  Kneeland,  20  Pick.  206 
Com.  vs.  Dejardin,  126  Mass.  46 
Com.  vs.  Wright,  139  Mass.  382. 

I.  N.  E.  Rep.  411 
Com.  vs.  McCance,  164  Mass.  162; 

29  L.  R.  A.  61. 
Com  vs.  Buckley,  200  Mass.  346 

MICHIGAN 
Peop.  vs.  Giradin  i  Mich,  90 

).  vs.  Harris,  13  Detroit  Legal 
News;  107  N.  W.  715 

MISSOURI 
State  vs.    Appling  (1857)  4  Jones' 

Mo.  R.  315 

Williams  vs.  State,  4  Mo.  480 
Edgar  vs.  McCutchan,  9  Mo.  768 

NEW  JERSEY 

Larison  vs.  State,  49  N.  J.  L.  256. 

60  Am.  Rep.  606 
State  vs.  Goldstein,  72  N.  J.  Law 

336  62  Atl.  Rep.  ioc6 
State  vs.  Hill,  73  N  J.  Law  77  ;  62 

Atl.  R.  936 

NEW  YORK 

People  vs.    Muller,  32  Hun.  209- 
96,,—  N.  Y.  4o8,448^-A.  Rep. 

635- 
People     vs.    Justice     of    Special 

Session*,  10  Hun.  224 
People  vs.   Hallenbeck,  52  How. 

Pr.  502  .c/ 

People  vs.  Daniley,  63  Hun.  579  -  * 
Matter  of  Worthington,  Co .,  62  St. 

Rep.  115;  30  N.  Y.  Sup.   361; 

(24  L.  R.  no  note) 
People  vs.  Jake   Berry,  i.   N.  Y. 

Crim.  R.  43 
People  vs.    Eastman,    Law  Jour. 

June  7,  1907.      188  N.  Y.  478 
People  vs,  Daly,  N.  Y.  Law  Jour. 

July  9,  1907,  and  June  17,  1907 
St.  Hubert's  Guild  >-s.  Quinn,  tS-^. 


426 


//r 


CASKS    ARISING    UNDER    "OBSCENITY"    AND    KINDRED    STATUTES. 


NORTH  CAROLINA. 
State  vs.  Toole,  106  N.  C.  736  ;  n 
S.  E.  Rep.  168. 

OHIO 

State  v;s.  Zjjriiorst,  79.N-  £•  238 


*       * » w      *-"/    ••  ^r      j    ••    *    ^ 

PENNSYLVANIA 
Com.  vs.  Sharpless,  2  Searg.  &  R. 

91 

Com.  vs.  Landis,  8  Phila.  453 
Barker  vs.  Com.  (1852)  19  Pa.  R. 

412 

RHODE  ISLAND 
State  vs.  Smith,  17  R.  I.  371 

SOUTH  CAROLINA 
Phulen  vs.  State  Va.,  8  Howard, 

i68(S.  C.) 
Union  Co.  vs.  Landing  Co.  4  S.  C. 

652 


TENNESSEE 
Peel   or  Bell   vs.    State,   (1851)   i 

Swan's  Term.  R.  42. 
Brooks  vs.    State  (1831)  2   Yerg. 

482-483 
Nolin  vs.  Mayor,  4  Yerg.  (12  Tenn.) 

163 
State  vs.  Pennington,  5  Lea,  506. 

TEXAS 
State  vs.     Hanson,   23    Tex.    Cr. 

App.  232 

Smith  vs  State,  24  Tex.  Cr.  App.  i 
Griffin  vs.  State,  43  Tex.  Cr.  App. 

428 
Huffman   vs.   State,   49  Tex.   Cr. 

Rep.  319 ;  92.  S.  W.  Rep.  419 

VERMONT 

State  vs.   Brown,    i  Williams  (27 

Vermont)  619 
State  vs.  Bacon,  41  Vt.  526. 


427 


Abbott,  Dr.  Lyman,  63. 

Abolitionist  Literature  in  the  Mails, 
139. 

Abridgable  Freedom  bv  Permission, 
165. 

Abridgable  versus  Unabridgable 
Liberty,  98,  159,  165,  203,  206,  208, 
212,  214,  218,  225,  227,  233,  238-39. 

Abridging  Intellectual  Freedom,  74. 

Abuse  of  Freedom,  The,  81,  150. 

Act  of  State  of  Virginia,  229. 

Actual   and   Material    Injury,   408. 

Actual  versus  Constructive  Crimes, 
22. 

Acute  Eroto-Mania  Akin  to  Prudery, 
113. 

Adamites  or   Picards,  The,   34,  264. 

Adams,  John,  368. 

Adler,  Professor  Felix,  294. 

Adultery  Less  Offensive  than  Em- 
ployment of  Men  Physicians,  266. 

Adverse  Judicial  and  Popular  Pre- 
disposition, 24. 

African  Virgins,  262. 

Agricultural  Department  of  the 
United  States,  276. 

Alien  and  Sedition  Law,  229. 

Allibone,  Samuel  Austin  (foot-note), 
226. 

All  Obscenity  is  in  the  Viewing  Mind, 
258. 

"Almost  Fourteen,"  63. 

Ambiguous  Statutes,  403. 

Ambiguous        Statutes        Judicially 
Amended,  352. 

Ambrose,  Saint,  305. 

American  and  English  Market  for 
French  Prurient  Literature,  122. 

American  Journal  of  Eugenics,  68. 

American  Medical  Association,  52, 
53,  68. 

American  Public  Health  Association, 
53. 

American  Society  of  Sanitary  and 
Moral  Prophylaxis,  121. 

Ammon  and  His  Wife,  265. 

Anabaptists  at  Amsterdam,  265. 

Analyzing  the  General  Term  "Ob- 
scene," 273-74. 

Angus,  H.  Crawford,  322. 

Another  Law-induced  Fraud,  120. 

Antecedent  Historical  Controversies, 
212. 

Antithetical  Writings  of  an  English 
Author,  267. 


Any  Inquisition  Into  Opinions,  Means 

All,  93. 

Any  Tyranny   Possible   Under  "Im- 
proper Conduct,"  366. 
Appeal  to  Judges,  An,  10. 
Approval    of    "Obscenity"    Laws    a 

Matter  of  Emotions,  26. 
Aquinas,  Thomas,  285. 
Arab    Pederasts   and   Modesty,   260. 
Arbitrary  Power,  not  the  "Abuse"  of 

it,  the  Evil,  257. 
Archbishop  of  Canterbury,  259. 
Ardhelm,  English  Saint,  262. 
Arena,  The,  280. 
Areopagitica,  The,  220,  233. 
Are  Words  Obscene  per  se?  335. 
Aristotle,  368-9. 
Aristotle,    Sphere    of    Religion    and 

Ethics,  285. 
Arkansas  Courts,  166. 
Armenian      Women      of      Southern 

India,  248. 

Art  Students  League,  The,  49,  308. 
As  to  Obscenity  on  Suspicion,  331. 
Auckland,  Lord,  376. 
Augustine,  Saint,  265,  305. 
Authority  Destroying  Liberty,  97. 
Azimba  Land,  Nudity  in,  322. 
Bacon's    Separation    of    Ethics    and 

Religion,  285. 
Bad    Books    Always    Injure    Others, 

not  Ourselves,  102. 
Bailey's  Dictionary,  107. 
Bakedi  Women  and  Clothes,  322. 
Baptism  of  Agilulf  and  Theodelinda, 

Basis  of  Moral  Snobbery,  122. 
Batchelor,  Rev.  Dr.,  284. 
Bayle,  Peter,   107-111,  302,  304,  317. 
Beall,  Dr.  Edgar  C,  57. 
Beaumont  and  Fletcher,  41. 
Beccaria,  373-75. 
Beecher,  Henry  Ward,  62. 
Beghards  and  Beguines,  The,  264. 
Beginnings  of  Suppression,  The,  42. 
Belief  Not  a  matter  of  Volition,  87. 
Believe  in   Obscenity  is  to  Find  It, 

To,  255. 

Bennett,  D.  M.,  45,  313. 
Bentham,  Jeremy,  235-36. 
Benzinger's  Library  of  Science,  244. 
Bertillon.  Doctor,  61. 
Best,  Chief  Justice,  393. 
Bible  Communists  of  Oneida,  113. 
Bible,  The,  43,  74,  78-9,  109,  111,  216, 

255,  275,  282,  284,  309-10-11. 


429 


INDEX. 


Bible.     (The),    Judicially     Declared 

Obscene,   65. 
Blackstone,   40,    170,  205,  225,   227-9, 

253,  348,  380-1,  386. 
Blackstone  and  His  Critics,  225. 
Blackstone's  Limited  Outlook,  226. 
Blasphemy,  45,  181,  192,  209. 
''Blunted    Sensibilities"    may    be    De- 
sirable,  256. 
Boast  of  Professional  Vice-Hunters, 

29. 

Boccaccio,  50. 
Bonaparte,    Napoleon,    145. 
Boutrier,  President,  304. 
Brahmin    (The),    and    the    Law    of 

Manu.  284. 

Brazilian  Indian  Women,  246. 
Brethren    and    Sisters    of    the    Free 

Spirit,  264. 

Bingham,  Police  Commissioner,  56. 
British  Courts  (The)  and  Contempt, 

173. 

Buchanan,  Senator,  140. 
Buddha,  283. 
Bulkley,  D.,  126. 
Buller,  Justice,  419. 
Bundling  Habit  in  New  England,  262. 
Bundling  in  Christian  Russia,  263. 
Burns'  "Merry  Muses,"  50. 
Burton,  Robert,  306,  321. 
Butler,  Dr.  Geo.  R,  62. 
Butler,  U.  S.  Judge,  314. 
Calhoun,  John  C,  139. 
California  Courts,  167. 
Caligula,  407-8. 
Calvin,  John,  219. 

Capitulars  of   Pepin,    17th   art..   304. 
Carlile,  Richard,  380-1. 
Carpenter,  Edward,  296. 
Catherine,  Wife  of  Peter  the  Great, 

264. 
Catholic's  (The)  "Permanent  Oracle 

of  the  Divine  Will,"  284. 
Causes  of  Constructive  Crimes,  343. 
Censorship  Before  Publication,  After, 

or  Both?  158. 
Censorship  not  Limited  to  Inter- State 

Commerce.  12. 

Censorship  of  Mails,  The,  232. 
Certain    Mohammedan    Women    and 

Modesty,  259. 
Certainty    Essential    to    Validity    of 

"Obscenity"  Statute,  363. 
Certainty     in     Civil     and     Political 

Statutes,  387. 
Certainty      Required      by      Modern 

Authorities,   384. 
Change  of   Words  Without   Change 

of  Ideas.  106. 
Changes     Wrought      by      Scientific 

Progress,  244. 

"Chastity  of  Our  Records,"  302. 
Chastity,    Where    Demand    for   is   to 

be  Sought,  290. 


Chinese  and  a  Moral  Code,  285. 
Chinese  Penal  Code,  395,  399. 
Chinese     Women's      Conception     of 

Modesty,  259. 
Christian     Missionaries'     Concession 

to  Polygamy,  291. 

Christian  Sects  that  Made  Promiscu- 
ous Nudity  a  Virtue  and  Duty,  263. 
Christian's  Reverence  for  His  Bible, 

284. 

Chrysostom,  Saint,  262,  306-7. 
Ciampmi's      Illustration      of     Early 

Custom,  264. 
Civil  War  Among  Moral   Sectarists, 

113. 

Clark's  Marriage  Guide,  57. 
Classifying  Mail  Matter,  and  Classi- 
fying Recipients,  23. 
Clay,  Henry,  139. 
Clement  of  Alexandria,  267,  305. 
Clement     of     Rome     on     Ideals     of 

Modesty,  267. 
Cleveland,  President,  157. 
Clifford,  W.  Kingdon,  286. 
Coke,  Lord,  35,  144,  375,  377,  386. 
Colgate,  Samuel,  309. 
Collet,  Collet  Dobson,  231. 
Colorado  Courts,  169. 
Committee  of  Fifteen,  294. 
Comstock,  Anthony,  59,  62,  103,  118. 

123,  255,  308-9,  314,  338. 
Comstockery,  101-2,  123. 
Concerning  "Moral   Poison,"  301. 
Conclusion    from   Judicial    Decisions 

(Chap.  X),  203. 
Concurrence      of      Moral      Zealots. 

Courts,    and    Legislatures,    155. 
Confessional   Unmasked,"   "The,  55. 
Confident  Clean-Mindedness,  30. 
Conflict  as  to  the  Nude  in  Art,  306. 
Conflicting  Viewpoints,  158. 
Conflicts  as  to  "Taste"  and  "Shocks'* 

as  Tests,  334. 
Congres   International  de  Medicine. 

251. 
Congress  Cannot  Control  Other  Than 

Mail  Transportation,  19. 
Congress    Limited,    Parliament    Not. 

160,  212. 

Congressman  Merriam,  49. 
Congress  May  Establish  Mail  Routes. 

Not  Regulate  Ideas,  134. 
"Conjugial  Love,"  61. 
Connecticut  Courts,  171. 
Conscience  an  Unsafe  Guide,  115. 
Conscious     Modesty     of      Imitation 

Through  Cowardice,  316-17. 
Constitutional    Design    of    the    Fra- 

mers,  210. 

Constitutionality  of  Our  Moral  Cen- 
sorship, 17,  23. 
Constitution  Effective  Bar  If—,  344. 


430 


Constitution,  The,  11,  13,  17-8-9,  25, 
32-3,  51,  62,  75,  97-8-9,  129,  150, 
157-8,  160,  162-3,  165,  193,  199,  210, 
212,  228,  230,  234-5,  344,  349-50-1, 
353,  385,  403,  416. 

Constructive  Offenses,  Classes  of, 
15,  402. 

Constructive  Offenses  (No)  in  Eng- 
lish and  American  Law,  393,  395, 
402. 

Contempt  for  Constitutions,  156. 

Contradiction  as  to  "Knowingly"  in 
Indictment,  331. 

Conventional  Modesty  Repugnant  to 
Women.  318. 

Convictions  Not  Based  on  a  General 
Law,  14. 

Cooper,   Professor  Thomas,  91,  380. 

Copernicus.  252. 

Courts,  and  Expediency  of  Laws,  25. 

Courts  Can  Declare  Law,  Not  Create 
It.  347.  393. 

Courts  can  Not  Make  the  Language 
for  the  Law-Making  Power,  388. 

Courts  (The)  on  Origin  of  Modesty. 
243. 

Craddock  and   Stockham   Cases,   58. 

Craddock,  Ida,  58. 

Crime  Predicated  Upon  Mere  Psy- 
chologic Factors,  351. 

Crime  to  Teach  Real  Sexual  Science, 
43. 

Criminal  Libel  Procedure.  Its  His- 
tory. 417-22. 

Criteria  of  Guilt.  Lack  of  or  Con- 
tradictory, 329. 

Criteria  of  Obscenity — Legislating 
Into  Existence,  51. 

Critical  Studv  of  Fundamentals,  143. 

Cullom.  Senator,  157. 

"Cupid's  Yokes,"  46,  312-13-14. 

Cyprian  on  Mixed  Bathing,  268;  on 
Inspection,  305. 

Danaeus,  Baronius,  263. 

Dangers  of  Liberty,  127. 

Danger  of  Partisan  Definitions,  146. 

Danger  of  Precedents,   143. 

Danger  of  Private  Judgment.  The.  78. 

Danger  of  Precedents,  143. 

Danger  of  Private  Judgment,  The.  78. 

"Dangerous"   Opinions.  92. 

"Dangerous  Speed,"  ''Dangerous 
Tendencies,"  Not  Judicially  De- 
terminable,  362-63. 

D'Arbissell.    Robert.   262. 

Darwin.  Charles,  247,  319. 

Davenport.  "Powers  of  Reproduc- 
tion," 304. 

Davis,  Senator  John.  140. 

Dean  of  St.  Asaph,  183,  418. 

Decameron,  308. 

Declaration  of  Independence,  224, 
228.  236. 


Declaration  of  Independence  in 
ipines,  97. 

Defendant's  Attorney  an  Ally  of  the 
Prosecution.  30. 

Defense  Helpless  in  Face  of  Moral- 
istic Odium,  28. 

Defense  of  Freedom,  by  John  Milton, 
220. 

Defense  of  the  Censorship,  In,  219. 

Defective  Human  Nature  of  Judges, 

DeYleury,  Doctor,  289,  298. 

Defoe,  Daniel,  41. 

De  Lolme.  Jean  L.,  423. 

Demand  for  Certainty  Always  Made, 
237. 

Departmental  Legislation,  62. 

Desire  to  Persecute,  The,  76. 

Despotic  Power,  Not  Purpose  to 
Merely  Transfer,  371. 

Devens,  Attorney-General  of  Massa- 
chusetts, 313. 

Difficulty  in  the  Application,  409. 

Disastrous  Effects  of  the  Censorship, 
73. 

Discrimination  in  Admission  to  Mails. 
132. 

Disputants  Classified,  213. 

Disregard  and  Misuse  of  Evidence, 
95. 

Disrupting  old   Convictions,  252. 

Divergent  Views  of  Sex  Problems 
by  Christian  Sectarists,  285. 

Dixon,  William  Hepworth,  264. 

Doctrine  of  Freedom  of  Will  Becom- 
ing Obsolete,  88. 

Dodd,  Mead  &  Co.,  63,  64. 

Does  the  Deposit  Complete  the  Of- 
fense? 331. 

Dogmatic  Sex-Morality  of  Religion, 
The.  290. 

Donisthorpe,  Wordsworth,  31,  295. 

Double  Standard  (The)  in  18th  Cen- 
tury, 267. 

Doukhobors,  The.  265. 

Drummond.  Professor,  79. 

Druses,  Incest  and  Veils.  322. 

Dryden.  John,  41. 

Du  Maurier,  G.  L.  P.  B..  306-7. 

Due  Process  of  Law,  15,  16,  31,  238, 
279,  344,  349-50,  352-53-54,  357-58, 
360-61,  363-64,  367,  370-71-72,  375- 
76  383-84-85-86,  390,  394,  396-97, 
-101-02.  412,  414-15,  417,  423. 

Different  Conceptions  of  Modesty 
All  About  Us,  274. 

Dynamite  in  the  Mails,  21. 

Early  Law-Writers  on  Meaning  of 
"Law."  372. 

Earlv  Theory  as  to  Free  Speech,  The, 
208. 

Early  Writers  on  the  Necessity  of 
Law,  368. 


4.V 


INDEX. 


Economy  of  Happiness,  The,  287. 

Editorial  Liberty  in  Idaho,  97. 

Edwards,  Rev.  Jonathan,  120,  315. 

Eighteenth  Century  Notions  of 
Woman's  Demeanor,  266. 

Elementary  Principles,  and  Lawyers 
and  Courts,  9. 

Ellenborough,  Lord,  183,  205. 

Ellis,  Dr.  Havelock,  70,  268,  278,  296, 
317,  320,  321,  339. 

Emotional  Disapproval  of  Intellectual 
Liberty,  154. 

Empty  Verbalisms,  315. 

English  and  American  Systems  Dif- 
fer, 159. 

Epiphaneus,  Saint,  263. 

Equal  Religious  and  Moral  Liberty, 
85. 

Erskine,  Thomas,  40,  145,  205,  214, 
237,  377-78,  418-19-20-21-22. 

Establish  Post  Offices  and  Post 
Roads,"  "To,  130. 

Ethical  Culture  Movement,  The.  283. 

Ethical  Sentimentalizing  Merely,  107. 

Ethics  as  the  Heart  of  Religion,  284. 

Ethics  of  Science,  285. 

Ethnographic  Study  of  Modesty — 
Syllabus,  258. 

Etiology  of  Despotism,  The,  42. 

Euphemisms  Versus  Honest  English, 
104. 

Even  Seemings  of  Judicial  Calm 
Abandoned,  24. 

Everett,  Professor,  284,  286. 

Evidence  Aliunde,  331. 

Evolutionary  Development  of  Ju- 
ridical History,  417. 

Evolution  in  Religion,  245. 

Evolution  Toward  Medical  Books, 
The,  53. 

Excessive  Modesty  Conjoined  With 
Perverted  Sexuality,  324. 

Explicitness  in  Law  Destroys  "Dis- 
cretion," 375. 

E.v  Post  Facto  Standards,  16,  217, 
237-38,  276,  315,  358,  360.  363,  369, 
371-72,  380,  411-12-13,  416-17,  424. 

Expressing  Judges'  Emotional  Bias 
Only,  204. 

Extirpation  of  the  Scientific  Litera- 
ture of  Sex,  70. 

Ezekial,  Reading  of,  311. 

"Fables  for  the  Female  Sex,"  321. 

Fact,  Argument,  Ridicule,  the  Only 
Weapons,  86. 

Fact  or  Law?  329. 

Falling  from  Grace  to  Keep  Hens 
in  Convent  Inclosure,  268. 

Fear  of  Expression  Most  Disastrous, 
80. 

Federalist  Party,  The,  229. 

Felkin,  Dr.   R.  W.,  322. 

Fere,  Charles,  Pathology  of  the  Emo- 
tions, 269. 


Few  Can  Reason  Calmly  on  Sex,  31. 
Few  Have  Same  Experiences;  Hence 

Few  Have   Same  Outlook,  277. 
Fielding,  Henry,  41,  310. 
Field,  Justice,  200. 

Field-Museum  Importations,  72. 

Fifth    Amendment   of   the    Constitu- 
tion, 353. 

First  Advance,  Tyranny  by  the  Laws, 
366. 

First    Appearance    in    English    Case 
of   Modern   Conception,  40. 

First  Articulations  of  Infant  Liberty, 
216. 

First  English  Case  Following  Amer- 
ican Rev.,  39. 

Fiske,    Prof.   John,   88. 

Fitness   for   "Moral"   Instruction   of 
Children  is  Decisive,  334. 

Fixed  and  Uniform  Rule  of  Action, 
379. 

Florida  Courts,   173. 

Fortesque,  Chief  Justice,  36. 

Foundation  of  Liberty,  93. 

Fourth  Amendment  to  the  Constitu- 
tion, 19. 

Fourth  Case  Decided,  37. 

Fourteenth  Amendment  to  the  Con- 
stitution, 199. 

Fox  Libel  Act,  17,  418,  422. 

Franciscan  Monks,  264. 

Fraud  and  Lottery-Gambling,  134,  138. 

Freedom    of    Speech    Not    Gift    of 
Sovereign,  144. 

"Freedom    of    the    Press"    Its    own 
Interpretation,  164. 

From  Bawdry  Pictures  to  Nudity  in 
Art  and  Sexual  Anatomy,  49. 

From  "Obscene  Blasphemy"  to  "Blas- 
phemous  Obscenity,"  45. 

"From  the  Bail-Room  to  Hell,"  63. 

Gage,  Matilda  Joslyn,  253,  263. 

Garden-of-Eden    Legend,   243. 

Genesis  of  Legalized  Bigotry,  76. 

Genuine  Prudery  Founded  Upon  Ex- 
cessive Lewdness,  114. 

Gibbon,  Edward,  262. 

Gompers,  Samuel,  146. 

Gordon,  Lord  George,  Case  of,  377-8. 

Gorgo,   Wife  of   Leonidas,   259. 

Gould,  Rev.  S.  Baring,  120. 

Gourmont,  Remy  de,  303. 

Government  de  Facto,  369. 

Government,  de  Jure,  369. 

Government    of    Laws    and    Not    of 
Men,  392. 

Grand  Remonstrance,  The,  419,  422. 

Greatest    Happiness    Principle,    The, 
287. 

Great    Exactness    Required    in    Ex- 
pressing Legislative  Intent,  356. 

Habas    Corpus .     Writ    of.    371. 

Hale,  Sir  Matthew,  36,  253.  377. 

Hall.  President  G.  Stanley.  120.  289. 


432 


INDEX. 


Hall,  Rev.  Robert,  228-29. 

Hamilton,  Alexander,  379. 

Hampden,  John,  8. 

Harper's  Magazine,  25. 

Harrington,  James,  369. 

Hawkins,  "Pleas  of  the  Crown,"  40. 

Hayes,  Pres.  Rutherford  B.,  313. 

Helvetius,  Claude  A.,  320. 

Henrotin,  Dr.  Fernard,  53. 

Heywood,  E.   H.,  312-13. 

Hicklin,  Case  of,  55. 

Hieronymus,  Saint,  48. 

Hill,  Sergeant,  33,  143. 

Historical  and  Scientific  Interpreta- 
tion of  "Law"  is  Perpetuated  by 
Our  Constitutions,  384. 

Historical  Interpretation  of  "Law"  in 
Relation  to  Statutory  Certainty, 
365. 

Historical  Perspective  Necessary  to 
Correct  Interpretation,  159,  239. 

Historical  Synthesis  of  Common  Ele- 
ments, 164. 

Hindoos  and  a  Moral  Code,  285. 

Holmes,  Justice  O.  W.,  224. 

Holt,  Chief  Justice,  34,  144,  198. 

Holyoake,   George  Jacob,  231. 

Horsley,  Bishop,  227-28. 

Hospitals  and  Venereal  Disease,  54. 

Hostile  Predisposition  Concerning 
the  Author's  Contentions,  26. 

How  Far  May  Congress  Discriminate 
Among  Mail-Recipients?  137. 

How  Is  the  Implied  Power  Limited? 
132. 

"Human  Sexuality,"  71,  308. 

Humboldt,  William  von,  294. 

Hunt,  Albert  R,  63,  64. 

Hyperestheticism  and  Education,  275. 

Ignorance  of  Sexual  Psychology  In- 
capacitates Judgment,  29. 

Ignorance  of  the  Medical  Profession, 
116. 

Illinois  Courts,   173. 

Illogical  Processes  of  American 
Judges,  163. 

"Immodesty"  no  Provocative,  320. 

Immoral  Influence  on  Addressee  De- 
cisive, 333. 

Immoral  Influence  on  Addressee  Im- 
material, 333. 

Immoral  Influence  on  Ordinary 
Reader  Decisive,  333. 

Immoral  Influence  on  the  Most  Lewd 
Is  Decisive,  333. 

Immorality  and  Suicide  of  Suppres- 
sion, 298. 

Importance  of  Clear  Distinctions 
and  Definitions,  292. 

Importance  of  Legal  Maxims,  378. 

Incapacity  Has  No  Moral  Value,  323. 

"Indecent,  Filthy,  and  Disgusting," 
45,  357,  416. 

Indiana  Courts.  176. 


Indiscreet  Speeches  and  Crime,  373. 

Individual  Absurdities  of  the  Modesty 
Concept,  275. 

Infallibility  Must   Precede  Unanim- 
ity, 92. 

Inferior  U.  S.  Courts,  199. 

Injecting  Exceptions  Into  the  Consti- 
tution, 149,  154,  161. 

Innocent  Victims  of  Venereal  Infec- 
tion, 126. 

Instructive  Precedents,  405. 

Insuring   Open-Mindedness   in    Our- 
selves, 31. 

Intellectual    Association    Makes    for 
Respect,  318. 

Intellectual  Immorality,  96. 

Intent  is   Immaterial,  336. 

Intent    is    Material,    336. 

Intention  to  Regulate  Psycho-Sexual 
States,  137. 

"Interpretation,"  What  is  It?  148. 

Intolerance  Defended  by  False  Anal- 
ogies, 83. 

Iowa  Courts,  177. 

Iowa  Medical  Journal,  69. 

Irreligion    as    an   Alias   of    Treason, 
209. 

Irving,  Washington,  262. 

Is  Modesty  Innate  and  Uniform?  251. 

Is    Sexual    Pleasure    Evil    in   Itself? 
293. 

Issue  Between  Judges  and  Scientists, 
251. 

Is  the  Bible  Criminally  Obscene?  309. 

Is   the    Implied    Power   to    Regulate 
Unlimited?  130. 

Is  the  Statute  Tautological?  330. 
ack,  Dr.  George  N.,  72. 
ackson,  Andrew,  139,  381. 
ackson,  Exparte,  17. 
ames,  Prof.  William,  30-31,  318. 
apanese  (The)  and  Ethics,  285. 
apanese  (The)   and  Modesty,  259. 
efferson,  Thomas,  79,  228-29-30. 
erome,  Saint,  262,  311. 
esus,  283. 

Journal  of  Am.  Med.  Ass'n,  52. 

Jubilee  Exhibition  at  Kyote,  259. 

Judges  With  Comstockian  or  Ascetic 
Minds,  300. 

Judicial   Atavism,  417. 

Judicial  Congress,  The,  303,  304. 

Judicial  Creation  of  Criteria  of  Guilt, 
326. 

Judicial  Enlargement  of  the  Statute, 
352. 

Judicial    Epithetic    Argument,    The, 
28,  29,  255. 

Judicial  Interpretation,  207,  351. 

Judicial   Legislation  Under   Pretense 
of  Interpretation,  403. 

Judicial    Tests    of    "Obscenity"    Ap- 
plied, 338. 

Junitts.  368. 


433 


INDEX. 


Juries  Wish  to  be  Thought  Respect- 
able, 28. 

Kansas  Courts,  177. 

Kant,  Emanuel,  288. 

"Keepers  of  the  Liberties  of  Eng- 
land," 233. 

Kelly,  Dr.  Howard,  52,  53. 

Kent,  Chancellor,  192. 

Kentucky  Courts,  178. 

Kenyon,  Lord,  39,  227-28. 

Kime,  Doctor,  69. 

King  Charles  II,  35. 

King  Edward  I,  370. 

King  Edward  I II,  371. 

King  Edward  VI.  Acts,  78. 

King  Henry  III,  370. 

King  Henry  IV,  377. 

King,  Hon.  John  P.,  128,  139. 

King  John,  370. 

King  Richard  II,  377. 

King's  Rule  of  Divine  Right,  209. 

Kneeland  Blasphemy  Trial,  44.  46. 

Knox,  Rev.  Geo.  Wm.,  282,  285. 

Koran,  The,  295. 

Krafft-Ebing,  268,  339. 

Label  is  Everything,  With  the  Crowd, 
102. 

Lady   Purbeck's  Case.  36. 

La  Fontaine's  Tales,  111. 

Landis,  Judge,  72. 

Lant,  John  A.   (foot-note),  65. 

Laufer,  Prof.   Berthold,  72. 

Lavington,  Bishop,  120. 

Law   (The)   as  a  Science,  344. 

Law  (A)  Describing  the  Offense  is 
Required,  390. 

Lawless  Government  of  Men,  A.  365. 

Lawless  Judiciary,  A,  341. 

Law  Necessary  for  Protection  of  the 
Accused,  369,  383. 

"Law"  Not  Conformable  to  Natural 
Justice  is  not  the  Law,  349. 

Lawyers  Now  not  Scientists  of  the 
Law,  344. 

Law  of  the  Land,"  "The,  357,  364, 
369-70-71,  375,  383,  385-86,  389-90. 

Laws  Should  Have  No  Double  Mean- 
ing, 396. 

Law  That  is  Not  the  Law  is  Itself 
Crime,  350. 

Lee,  Charles,  Vice  Defined,  289. 

Lee,  Mrs.  Abbie  Dyke,  313. 

Lee.  Rev.  Frederick  George.  306-7. 

Legislative  Penalizing  of  Mere  Con- 
structive Injuries,  407. 

Legislature  (The).  Not  the  Court,  to 
Define  a  Crime,  395. 

L'Estrange,   Sir  Robert.  219. 

Letourneau,  Prof.  Ch.,  246,  294. 

Lewis,  Dr.  Denslow,  52,  53. 

Libel  and  Slander  Versus  Argument. 
90. 

Liberty  by  Permission  not  American, 
13.  159,  161. 


Liberty  of  Circulation  as  Essential  as 

Liberty  of  Publishing,  19. 
Liberty    of    Thought    the    Condition 

Precedent,  77. 

"Liberty  Under  Law,"  417,  421. 
Licensing   Acts,    The,    147,   207,   214. 

218,  233,  238. 
Licensing   the    Book    Instead   of   the 

Printer,  218. 
Life  Sexual,"  "The,  57. 
Ligouri,    Requirements    of    Modesty. 

265. 
Limitations       Upon       Congressional 

Power,  12,  18,  20. 
Limited  Marriages  (Humboldt),  294; 

Parsons.  297. 
Linnaeus,  314. 

Literary  Fashion  and  Morals,  104. 
Literary  Vulgarity  and  Morals,  107. 
Livingston,  Edward,  327,  343,  381-82. 
Livy.  368-69. 

Logical    Suicide    of    Regulation   Ar- 
gument,   135. 

Lotteries  and  the  Mail,  20-21. 
Lottery  Decisions  no  Bearing  on  Sex- 
Censorship,  22. 
Lottery     Matter,    Exparte    Jackson. 

17.  21,  22,  23. 
Louisiana  Courts,  179. 
"Love  and  Its  Affinities,"  62. 
Lowell,  Judge,  57,  406. 
Lucien.  in  His  "Eunuchus,"  304. 
Macaulay,  Thomas  B.,  299,  300. 
i   Mackaye,  James,  287. 
I  Magna   Charta.   369-70-71-72-73,   376. 

385-86. 

Makart.    Hans,    49. 

1  Mala  in  Se  and  Mala  Prohibit  a,  20-21. 
|  Malchow,  Dr.  C  W.,  58,  68. 
|  Majority  and  Minority,  368. 
i  Man  Cannot  Create  Moral  Laws.  291. 
|  Mangasarian,  M.  M.,  284. 
Alanlius,  M.,  Anecdote  of.  265. 
Mansfield,  Lord,  183,  205,  227-28,  419. 
Mantegazza,  Dr.  Paolo,  248. 
Manufacture  of  Precedents,  47. 
Many    Dogmas    Wholly    Suppressed, 

82. 
March's    "Action    for    Slander    and 

Arbitrament,"    34. 
:  Marshall,    Chief    Justice.    17,    134-35. 

137,  141,  395. 
;   Maryland  Courts,  179. 
j  Massachusetts  Courts,  180. 
Massinger,    Philip,   41. 
Material   Injury   Essential  to   Crime. 

350,  355. 

Mather,  Cotton,  on  Ethics,  286. 
Mathews.  Justice,  397. 
.  May  Comparisons  be  Made?  330. 
!   May  Congress  Use  Postal  Power  to 

Regulate  Trade?  135. 
Medical  Council,   The,   118. 


434 


INDEX. 


Menace  of  Such  Power,  138. 

Men  Ought  no  Longer  to  be  Led. 
96. 

Mere  Conjecture  of  Court  not  Per- 
missible, 392. 

Mill,  John  Stuart,  287,  294. 

Milton,  John,  233,  300. 

Minnesota    Courts,    181. 

Minnesota  State  Med.  Society,  68. 

Mississippi  Courts,  182. 

Missouri  Courts,  182. 

Modesty  Among  Some  Worldlings, 
268. 

Modesty  and  Adultery  in  India,  261. 

Modesty  in  Ancient  Germany,  263. 

Modesty  in  Ancient  Greece,  258-59. 

Modesty  is  Fear  of  the  Judgment  of 
Others,  29. 

Modesty  of  Adames  Women,  261. 

Modesty  of  a  London  Prostitute,  307. 

Modesty  of  Another  Extreme,  265. 

Modesty  of  Native  Mexicans,  259. 

Mohammedan  (The)  and  the  Koran, 
284. 

Moliere  110. 

Monks  of  Mount  Athos,  268. 

Monogamy  and  Variety,  297. 

Montaigne,  321. 

Montana  Courts,  185. 

Montesquieu,  Baron,  224.  227-28-29. 
348,  372-73,  379. 

Moore,  C.  C,  45. 

Moral  Advance  Through  Criticism, 
84. 

"Moral"  Emotions  Intense  as  the 
Nerves  Are  Diseased,  115. 

Moral    Evil   of   Comstockery,    101. 

Morality  as  Object  of  Reverence,  283. 

"Morality"  not  the  Same  to  All,  292. 

Moral  Ought,  The,  281. 

Moravian  Missionary  on  Polygamy, 
291. 

Mormon  (The)  and  His  "Prophet, 
Seer,  and  Revelator,"  284. 

Mormon  Polygamists,  113. 

Morrow,  Dr.  Prince,  126. 

Mortensen,  Light  of  Religion,  282. 

Mortimer,  Geoffrey,  246,  297. 

Mosheim.  J.    L.    von,  264. 

Most  Frequently  Used  "Test,"  338. 

Mostly  Still  Crude  Thinking  as  Re- 
gards Essentials  of  Law,  367. 

"Mrs.  Warren's  Profession,"  56,  122. 

Miiller,  Prof.  Max,  79. 

Miinsterburg,  Prof.  Hugo,  32. 

Museum  of  Anatomy,  The,  56. 

Must  be  Correspondence  Between 
Subjective  and  Objective,  348. 

Must  Include  Empirical  Generaliza- 
tions in  a  Rational  Generalization, 
345. 

Must  the  Language  be  "Obscene"? 
335. 

Mystifying  Epithetic  Tautology,  242. 


Naga  Women,  The,  260. 

National  Liberal  League,  326. 

National  Purity  Federation,  119,  327. 

Nation,  Mrs.  Carrie,  64,  308. 

Natural  Religion  Demands  Natural 
Life,  299. 

Nature  of  the  Law,  346. 

Nature  of  Our  Social  Organism.  The, 
353. 

Nature's  Moral  Law  is  Unavoidable. 
292. 

Nature  Ultimate  Source  of  Authority 
in  Ethics,  287. 

Nebraska  Courts,  186. 

Necessity  of  Intellectual  Opportunity. 
153,  238. 

Nelson,  "Rights  of  the  Clergy,"  303. 

Nelson,  U.  S.  Judge,  313. 

New  Hampshire  Courts,  187. 

New  Jersey  Courts,  188. 

New  York  Courts,  189. 

N.  Y.  Society  for  Suppression  of 
Vice,  45,  309. 

New  York  World,  146. 

No  Certain  Rule  of  Conduct  Pro- 
vided, 14. 

No  Conception  of  Freedom  in  Gen- 
eral, 148. 

Norris,  Rev.  John,  293. 

Not  "Unclean"  in  the  Critics'  Own 
Cases,  7. 

Nude  Baptism  of  Women  Among 
Early  Christians,  263. 

Nudity  and  Modesty  Among.  Primi- 
tive People  of  More  Recent  Times, 
259. 

Nudity  Chaster  in  Its  Effects  Than 
Partial  Clothing,  306. 

Objectivizing  Our  Emotional  Ap- 
praisements 27. 

"Obscene  and  Indecent"  Never  Quali- 
ties of  Literature  and  Art,  250. 

"Obscene  Blasphemy,"  46,  48. 

"Obscene"  Devoid  of  Every  Objective 
Element  of  Unification,  277. 

"Obscene"  Indefinable  as  a  Matter  of 
Science,  361. 

Obscenity  and  Indecency  Not  Sense- 
Perceived  Qualities,  13. 

Obscenity  Contribution  of  the  Read- 
ing Mind,  14,  338. 

Obscenity  Found  Only  in  the  Viewing 
Mind.  277. 

Obscenity  Harmless  to  Normal  Per- 
sons. 103. 

Obscenity  Never  Became  a  Common- 
Law  Crime  in  America,  39,  239. 

Obscenity  not  Dissociated  from  Blas- 
phemy, at  First,  37. 

Ohio  Courts.  193. 

Oklahoma  Courts,  194,  204. 

Old  Arguments  Supporting  New 
Tyrannies,  81. 


435 


INDEX. 


Oldest  Conviction  for  Obscenity, 
Sedley's  Case,  34. 

Old  Testament  and  the  Law,  66. 

Only  Unifying  Element  (of  "Ob- 
scene") is  Subjective,  277. 

Open  Letter  to  Jesus  Christ,"  "An, 
45. 

Opening  of  Mail  Matter  by  Officials, 
19. 

Opinions  Are  Non-Moral,  89. 

Opposite  of  the  Usual  is  Embarrass- 
ing, 319. 

Ordinary  and  Plain  Meaning  of 
"Freedom,"  150. 

Ordronaux,  389. 

Oregon  Courts,  194. 

Origen,  Self-Mutilated,  262. 

Origen's  Views  of  Marriage,  48. 

Origin  of  Prudery  and  Modesty,  245. 

Otaheitan  Marriage  Ceremonies,  260. 

Our  Opinions  Are  Involuntary,  87. 

Pacific  Medical  Journal.,  60. 

Paine,  Thomas,  282. 

Parke,  Dr.  J.  Richardson,  71,  308. 

Parliament  of  Paris,  305. 

Parsons,    Elsie    Clews,  296. 

Parvin,  Theophilus,  M.D.,  61. 

Passionate  "Will  to  Believe,"  A,  25. 

Pastor  of  the  Labor  Church,  298. 

Paterson,  James,  327. 

Peculiarity  of  Australian  Women, 
260. 

Peel,  Sir  Robert,  234. 

Penalizing  Abstractions  and  Emo- 
tions, 409. 

Penalties  Cannot  be  Inflicted  at  the 
Discretion  of  a  Jury,  398. 

Pennsylvania  Courts,  194. 

Persian  (The)  and  the  Laws  of 
Zoroaster,  284. 

Personal  Idiosyncrasy  Versus  Equal 
Law,  133. 

Pfleiderer,  Rev.  Otto,  Solution  Only 
in  God,  282-3. 

Physical  Examination  in  England, 
303. 

Physical  Examination  in  Utah,  303-4. 

Physical  Foundation  for  Moral 
Health,  75. 

Platonic  Love,  Harmful  as  It  is  Im- 
moral, 290. 

Plea  for  Open-Mindedness,  249,  252. 

Pleasure,  Clergyman's  Observations 
Concerning,  293. 

Poison,  Actual  and  "Moral,"  no 
Parallel,  301. 

Political  Myopia  of  Judges  and 
Legislators,  156. 

Polyandry,  in  Thibet  and  Elsewhere, 
291. 

Pope,  Alexander,  310. 

Pope,  Gregory  the  Great,  304. 

Pope.  Rev.  L.  A.,  63. 


Popular  Ignorance,  119. 

Populating  by  the  Stork  Method,  325. 

Porto  Rico,  Suppression  in,  97. 

Postal  Censorship  in  England,  234. 

Postal  Department,  The,  17.  47,  67-8, 
72,  118,  232,  312. 

Postmaster  General,  The,  22,  308. 

Post-Revolutionarv   Discussion,   379. 

Potter,  Rev.  John,  259. 

Pratt,  Prof.  James  B.,  245. 

Predestination   and   Immorality,   299. 

Present  Tests  of  Obscenity  Grossly 
Ridiculous,  127. 

President  Hall's  Indefiniteness,  121. 

Priestly,    Dr.   Joseph,   7. 

Principles  Which  Were  Before  the 
Constitutions,  384. 

Printing   License  a   Monopoly,   215. 

Printing  Merely  an  Extended  Form 
of  Speech,  13. 

Prior,  Matthew,  41. 

Progress  by  Knowledge  of  Natural 
Law,  84. 

Progress  Conditioned  Upon  Experi- 
mentation, 87. 

Prohibiting  Ideas  One  Thing;  Pro- 
hibiting Actions  Quite  Another,  21. 

Prolegomena,  7. 

Prosecution  of   Physicians,  54. 

Protecting  the  Excessively  Lewd,  67. 

Protestant  Electoral  Union,  55. 

Prudery  in  the  Medical  Profession, 
51. 

Prudish  Popular  Sex-Literature,  119. 

Psychologic  Argument  Illustrated  by 
the  Triangle.  272-73. 

Psychologic  Study  of  Modesty.  A, 
315. 

Psychologic  Tendency  as  Criterion 
of  Guilt,  236,  238. 

Psychology  of  Modesty,  27. 

Psychology  of  Montana  Indians,  261. 

"Public  Indecency"  Vague  and  In- 
definite, 405. 

Public  Interest  Requires  Investiga- 
tion, 96. 

Public  Pretense  and  Private  Life, 
112. 

Punishment  Bad  Form  of  Syllogism, 
95. 

Puritan  Prudery,  382. 

"Purity"  Books  Suppressed,  62. 

Purity  Workers  Victims  of  Judge- 
Made  Law,  327. 

Putnam,  Dr.  Helen  C.  119. 

8 uestion- Begging  Epithets,  254. 
uintilian.  305. 
Rabelais,  50. 

Rabelais  and   Boccaccio,  307-8. 
Rainsford,  Rev.  W.  S.,  59. 
Rapid   Advance   of   Sexual    Psychol- 
ogy, 30. 


INDEX. 


Rational  Source,  Then  Rational  De- 
fense, 87. 

Real  Purity  the  Child  of  Knowledge, 
99. 

Reasoner,  The,  231.  . . 

Reinterpretation  of  Our  Constitu- 
tional Guarantee,  206. 

Relation  of  Special  Cases  to  General 
Principles,  345. 

Relation  of  "Speech,"  ''Press,"  and 
"Freedom,"  151. 

Religion  and  Science  Distinguished, 
279-80-81. 

Religion  Without  Morals,  284. 

Religious  Heresy  Then ;  Moral  Her- 
esy Now,  79. 

Religious  Origin  of  Judicial  Notions 
About  Uniform  Standard  of  De- 
cency, 242. 

Religious  Versus  Secular  Ethics,  281. 

Required  Certainty,  General  State- 
ment, 364. 

Requirement  of  Natural  Justice,  347. 

Renooz,  Madame  Celine,  318. 

Retrogression  Since  the  Revolution, 
41,  43. 

Revelation  (A)  to  the  Author,  59. 

Revelations  of  the  Literature  of 
Sadism,  340. 

Reversion  to  Bad  Pre-Constitutional 
Conditions,  162. 

Ribot,  Prof.  Th.,  247,  319. 

Right  and  Wrong  Methods,  94. 

Rights  of  Minorities,  85,  91. 

Right  to  Hear  and  Read,  90. 

Right  to  Know.  98. 

Robinson,  Dr.  Wm.  J.,  341. 

Roosevelt,  President,  69,  157. 

Root,  Elihu.  157. 

Royal  Academy  of  Art,  The,  306. 

Royal  Society,  The,  252. 

Ruffner,  Rev.  Dr.,  262. 

Safeguards  Against  Arbitrary  De- 
termination of  Guilt,  372. 

Saliras,  The,  246. 

Salter,  Rev.  W.,  283. 

Samoyed  Women  After  Marriage, 
260. 

Sanchez,  Obscene  Casuistry  of,  314. 

Sanger's  "History  of  Prostitution," 
68. 

Satyr  or  Nvmphomaniac,  not  Books, 
Responsible,  103. 

Science  Rationalizes  Sex- Passion.  114. 

Scientific  Aspect  of  Law,  343. 

Scientific  Ethics  Versus  Hysteria,  112. 

Scientific  Meaning  of  "Law,"  211. 

Scientists  on  Modesty  as  an  Instinct. 
245. 

"Screw-loos-ibus,"  412. 

Second  Advance,  Limiting  the  Law- 
Making  Power.  366. 

Second  Conviction  for  Obscenity.  34. 

Sedgwick.  Professor,  281. 


Sedley,  Sir  Charles,  34-7. 

Sensible  Modesty  in  Masai,  261. 

Sentiment  of  Modesty  Most  Change- 
able, 249. 

Sergi,  Professor,  247. 

Seventh  Amendment  to  the  Constitu- 
tion, 17. 

Sex-Education   All-Important,  75. 

Sex-Ignorance  and  Insanity,  123. 

Sex   Over-Valued  as  Good  or   Bad. 
114. 

Sex  the  One   Terra  Incognito,  74. 

Sex- Worship  Among  Ancient  Greeks 
and  Romans,  269. 

Sexual    Element   not    Found   in    All 
Modesty  or  Shame,  274. 

Sexual  Fetichism,  339. 

"Sexual  Hygiene,"  48. 

Sexual  Perversion  and  Religion,  269. 

Shakespere,  41,  106,  210. 

Shall  Logic  and  Law  or  Sentimental- 
ism  Prevail?  415. 

Shame  in  Ratio  of  One's  Own  Sex- 
Sensitiveness,  323. 

Shame    (Modesty)     Pain    at    Disap- 
proval of  Others,  319. 

Sheribat's  Rule  for  Turkish  Women. 
248. 

Shufeldt,  Dr.  R.  W.,  50,  340. 

Sidney,  Algernon.  368-69. 

Sinful  Bishop,"  "The,  56. 

Smith,  Arthur,  287. 

Smollet,  T.  G.,  41. 

"Social  Compact  and  the  Body  Pol- 
itic," 243. 

Social  Ethics  Alter  and  Advance,  86. 

"Social  Peril,"  The,  62. 

"Society  for  the  Suppression  of  Vice," 
45. 

Society  for  the  Promotion  of  Social 
Purity,  70. 

Some   East  African  Tribes,  260. 

Special  Creation  and  Organic  Evolu- 
tion, 244. 

Spencer,   Herbert,  94,    156,   247,   288. 
290-91,  295. 

Spinoza.  Benedict.  222-23. 

Spurgeon,  Rev.  Dr.  C.  H..  120. 

Spurious     Modesty     of     Uncoerced 
Sympathetic  Imitation,  316. 

Standard  of  Certainty,  The,  414. 

Star  Chamber,  The,  34,  209.  214,  217. 
218,  227.  229.  418. 

State    Courts     (The)     Decisions    of, 

389-92,  397. 

State  Medical  Society  of  Illinois.  327. 
Statistics  of  Venereal  Infection,  125-6. 
Statute  not  Self-Explanatory  is  not 

"the  Law  of  the  Land,"  364. 
Statutes   (The)   Do  not  Describe  the 

Criteria  of  Guilt,  342. 
Status    at    Separation    of    American 
Colonies.  38,  423. 


437 


INDEX. 


Statutory  Words  Must  Symbolize 
Definite  and  Uniform  Concepts, 
410. 

Stephens,  Sir  James  Fitzjames.  227, 
300,  381. 

Sterne,  Lawrence,  41. 

Stoddard,  Rev.  Dr.,  315. 

Stoics,    The,   111. 

Story,  Justice,  192. 

Strattpn's  "The  Sexual  Life,"  57. 

"Studies  in  the  Psychology  of  Sex," 
70,  278. 

"Studies  of  the  Human  Form,"  50. 

Stump  Speeches  by  Judges,  321. 

Sturgis,   Prof.  Frederic  W.,   118. 

Subjective  Feeling  not  Objective 
Criterion,  32. 

Suffering  of  the  Vicious  to  Safeguard 
Virtue,  124. 

Suggestion  for  the  Timid,  99. 

Suggestions  of  the  Depew  Board  of 
Health,  72. 

Suidas,  305. 

Sullivan,  Hon.  Timothy,  157. 

Suppressed  Because  not  "Obscene," 

^66. 

Suppressing  Truth  for  Expediency, 
79. 

Suppression  of  Bible-Reading,  78. 

Suppression,  Then  and  Now.  in  Eng- 
land and  Here,  9. 

Swedenborg,  Emanuel,  61. 

Swift,  Jonathan,  41,  310. 

Syllabus  of  Argument  Against  Mail- 
Censorship,  129,  142. 

Syllabus  of  Psychologic  Study  of 
Modesty  and  Obscenity,  271. 

Syllabus  of  the  Argument  Against 
Constitutionality,  11,  12,  13. 

Synthesis  (The)  and  the  Application, 
402. 

Tacitus,  His  Testimony,  263. 

Talmey.  Dr.  B.  S.,  324. 

Taxes  on  Knowledge,  230,  238. 

Taylor  and  Lawton  Cases,  The,  311. 

Ten  Commandments  in  Pictures,  106. 

Tertullian,  262. 

Test,  "Into  Whose  Hands,"  etc.,  55. 

Test  of  Obscenity  not  Matter  of 
Common  Knowledge.  240-41,  389. 

"Tests"  Are  not  Standards  of  Judg- 
ment, 278. 

Tests  of  Guilt  of  Judicial  Creation, 
403. 

Texas  Courts,  195. 

Text-Book  Writers  on  Certainty  in 
Penal  Statutes,  388. 

Theodoret,  263. 

Theological  Morals,  281. 

Third  Advance,  to  Liberty  Under 
The  Law,  366. 

Third  Conviction   for  Obscenity,  35. 


Thomas,  Prof.  William  I..  106.  247-8, 
319-20. 

'Three  Weeks,"  50. 

Timidity  of  Moral  Dissentients,  257. 

''Tokology,"  59. 

Tolstoy,  Count,  263. 

Tolstoy's  "Kreutzer  Sonata,"  50. 

Tournefort,  Doctor,  261. 

Tragedy  of  Youth,  The,  299. 

Train,  George  Francis,  65,  309-10. 

Transition  Toward  Secular  Morality. 
282. 

Treby,  Justice,  144. 

Trevor,  John,  298. 

True  Modesty  Eludes  Exact  Defini- 
tion, 316. 

Trumbull,  Gen.  M.  M.,  156. 

"Triumph  of  Charles  V,"  49. 

Turkish  Prudery,  261. 

Tyndale,  William,  78. 

Tyrants'  "Love"  of  Liberty,  144,  145. 

Unabridgable  Right  to  Utter,  203. 

Unabridged  Free  Speech  Unknown  to 
Blackstone,  226. 

"Unbecoming"  Literature,  334. 

Uncertain  and  Ambiguous  Statutes 
Distinguished,  358. 

Uncertain  and  Personal  Standards 
of  Law,  28. 

Uncertain  Statutes,  404. 

Uncertain  Statutes  and  Judicial  Legis- 
lation, 352,  390-91,  412. 

Uncertain  Statutes  Classified,  356. 

Uncertainty  as  to  Medical  Books,  337. 

Uncertainty  Concerning  the  "Ob- 
scene," 360. 

Uncertainty  in  Case  of  "Intent"  and 
"Obscene"  Contrasted,  361-62. 

Uncertainty  in  Heresy  Trials,  381. 

Uncertainty  Negatives  "Due  Process 
of  "Law?'  279,  355. 

Uncertainty  of  Evidence  and  of  Law 
Distinguished,  359. 

Uncertainty  of  Statutory  Criteria  of 
Mailability,  233. 

Uncertainty  of  Tests  in  England,  236, 
380. 

"Uncle  Tom's  Cabin."  103,  339,  341. 

Unclothed  Nilotic  Tribes,  The,  322. 

Unfamiliar  (The)  Most  Often  "Ob- 
scene," 276. 

U.  S.  Attorney-General,  311-12. 

U.  S.  Supreme  Court,  9,  23,  73,  138, 
161,  162,  199,  201,  205,  207,  218,  241, 
243,  341,  347,  357,  395-96.  399. 

Union  of  Church  and  State,  209,  210. 
214. 

United  States  Courts,  65,  104,  392-95, 
407. 

Unreasoned  Mioral  Sentimentalism, 
not  Ethics,  Favors  Suppression, 
116,  240. 


438 


mshifting    Line    of    Partition    Non- 
Existent,  250. 
"Up-to-Date  Fables,"  58. 
Urgency  for  the   Education   Denied 

by  Law,  127. 
Utah   Pope,  The,  284. 
Vanni,  45. 

Various  Methods  of  Abridgment,  206. 
Vast  Number  of  Vague  "Moral"  Laws 

and  Regulations,  357. 
Verdict     (The)     in     the     Appellate 

Tribunal,  29. 

"Vice;  Its  Friends  and  Its  Foes,"  58. 
Victims  of  Diseased  Emotions,  77. 
Vital    Importance    of    Separation    of 

Powers.  379. 
Voltaire,  311. 
Wace,   Prebendary,  281. 
Wake,  C.  Stanisland,  295. 
Walker,  Dr.  Mary,  60. 
Wallace,  Alfred  Russell,  246. 
Wanamaker,  Postmaster-General,  50. 
"War  Chronicles,"  231. 
"War  Fly  Streets,"  231. 
Warren,  Mortimer  A.,  63,  64. 
Washington  Courts,  196. 
Wasman,  Father  Erich,  244. 
"Water"     Illustrates     "Obscene"     by 

Contrast,  360-61. 
Waugh,  Prof.  Wm.  F..  117. 
Webster,  Ass't  Atty.  Gen.,  R.  M.,  68. 
Webster,  Daniel,  140. 
Webster,  John,  257. 
Well-bred  African  Negroes,  The,  260. 
Wesley,  John,  254. 
Westermarck,  Prof.  Eduard.  31,  246, 

297. 

Westminster  Revieiv.  91. 
Western  Society  for  the  S.  of  Vice. 

70. 


i   West  Virginia  Courts.  196. 

'  What  is  of  Infinite  Importance,  8. 

Wherein  Must  the  Obscenity  be?  335. 

"Where  the  Law  is  Uncertain  There 
is  no  Law,"  15.  346,  352.  355,  361, 
363,  378.  385,  387-88.  401,  404.  410- 
11,  414. 

White,  Prof.  Andrew  D.,  314. 

Whose  Conception  of  the  Good  and 
Useful?  288. 

Whose  Opinion,  the  Juror's,  the  Pub- 
lic's, or  the  Purist's?  332. 

Why  Discuss  the  Subject  at  All?  75. 

Why  Few  Accusations  Fail,  29. 

Wickedness  of  Supporting  Sex  Super- 
stitions by  Law,  82. 

Wilder,  Prof.  G.  Burt.  121. 

Wilkes,  John,  37-8. 

Williams,  "Evolutional  Ethics,"  288, 
319. 

Will  Truth.  Crushed.  Rise  Again? 
82. 

Wisconsin  Courts,  198. 

Wise,  John  B.,  65,  310. 

Witchcraft  and  Obscenity.  28.  253, 
256. 

Witches  Subjective,  254. 

Word  Extra,  The,  313. 

Words  not  an  Overt  Act.  373. 

Works  First  Attacked,  50. 

Wollstonecraft,  Mary,  318. 

W.   C.  T.  U.,  70,   119. 

Women's  Customs  of  Dress  in  17th 
Century.  265-66. 

Women  in  Lapland.  259. 

Worse  Than  Mere  Neglect  of  Scien- 
tific Method,  165. 

Yoke."  "The,  50. 

Y.  M.  C.  A.,  70. 

!  Zola's  Novels  in   England.   Prosecu- 
tion of.  41. 


439 


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